Karnataka High Court
The State Karnataka vs Smt. Jayashri Malleshappa Umadi on 24 May, 2023
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RFA No. 100426 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MAY, 2023
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
REGULAR FIRST APPEAL NO. 100426 OF 2022 (MON)
BETWEEN:
THE STATE KARNATAKA,
R/BY ITS EXECUTIVE ENGINEER, KNNL GRBCC,
DVN NO. 4, CHIKKODI-591201, DIST BELAGAVI.
...APPELLANT
(BY SRI V.M. BANAKAR, ADDL. GOVT. ADVOCATE)
AND:
1. MALLAPPA DUNDAPPA UMADI,
SINCE DECEASED BY LR'S,
1A. SMT JAYASHRI MALLESHAPPA UMADI,
AGE 58 YEARS, OCC HOUSEHOLD WORK,
R/O. SAI SHANKAR NAGAR, NIPPANI,
TQ. CHIKKODI-591201, DIST. BELAGAVI.
1B. SHRI VISHWANATH MALLESHAPPA UMADI,
AGE 35 YEAR, OCC. HOUSEHOLD WORK,
POOJA R/O. SAI SHANKAR NAGAR, NIPPANI,
DEELIP TQ CHIKODI -591201, DIST BELAGAVI.
...RESPONDENTS
SAVANUR
Digitally signed by POOJA (BY SRI S.A. SANDUR, ADVOCATE FOR R.1A AND R.1B)
DEELIP SAVANUR
Location: HIGHCOURT
OF KARNATAKA-
DHARWAD BENCH
Date: 2023.06.14 12:56:04
REGULAR FIRST APPEAL FILED UNDER SECTION 96 R/W.
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ORDER XLI RULE 1 OF CODE OF CIVIL PROCEDURE PRAYING SET
ASIDE THE JUDGEMENT AND DECREE PASSED IN O.S. NO.
88/2017(34/2007) DATED: 29-03-2019 PASSED BY LEARNED
SENIOR CIVIL JUDGE AND JMFC NIPANI AND THEREBY DECREE THAT
SUIT. GRANT SUCH OTHER RELIEFS AND ORDER, DEEMED FIT AND
PROPER IN THE CIRCUMSTANCES OF THE CASE IN THE INTEREST OF
JUSTICE AND EQUITY.
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RFA No. 100426 of 2022
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
VENKATESH NAIK T J., DELIVERED THE FOLLOWING:
JUDGMENT
The State of Karnataka has filed an appeal under Section 96 R/w. Order 41 Rule 1 of CPC, aggrieved by the judgment and decree in OS No.88/2017 (34/2007) dated 29.03.2019 passed by learned Senior Civil Judge and J.M.F.C, Nippani wherein, the trial court dismissed the suit and plaintiff, hence, prayed to decree the suit.
2. The parties herein are referred to as per their ranks before the trial Court.
3. Brief facts of the plaintiff's case are as under:
The Karnataka Niravari Nigama Limited (hereinafter referred to as KNNL) is a State Government Enterprise engaged in Development of irrigation and it had a Division Office at Ghataprabha (hereinafter referred to as G.R.B.C.C) now it has been shifted to Chikkodi. The defendant is a retired Executive Engineer, retired on 31.10.2001. He had worked as an Executive Engineer at G.R.B.C.C Division No.4, Ghataprabha from 13.08.1997 to 02.08.2000. The construction of Chikkodi -3- RFA No. 100426 of 2022 Branch canal K.M.36 (balance earth work and lining) causing Rs.32.14 lakhs was entrusted to M/s. Shetty's Construction Private Limited, Hubballi, on contract basis as per agreement No.IRC.IRC.14 for 18 months, excluding mansoon period. The project gave a progress of Rs.26.27 lakhs up to the extended period of March-1991. But stopped the work from April-1991 putting forth certain claims pertaining to the work.
4. The claims of the contractor included, inter alia mainly payment of excavation at the rate applicable for hard rock which requires blasting instead of soft rock, which required blasting, on the ground that he has excavated hard rock to an extent of 23,956 C.M, for which payment were made as applicable for soft rock. As pr schedule-B of contract, there was difference in state to an extent of Rs.102/- between 2 items (Rs.125-23). The contractor intended to make distinguish between excavation in hard rock which required blasting and in the soft rock, which did not require blasting. However, item No.2 of schedule-B included in the contract provided for soft rock which required for blasting and the work was not incidentally missing. As such the payment excavation in hard rock which required blasting was continued to be paid at lower -4- RFA No. 100426 of 2022 rate specified in item No.2 of schedule-B. Instead of item No.3 for hard rock, against which the contractor put forth his claims. This claim was not accepted by the Chief Engineer, Irrigation Department(North) Belagavi and the contract was rescinded in October-1992, at the risk and cost of the contractor, as he failed to resume the work. As the matter could not be settled through Arbitrator (Chief Engineer) the contractor had filed Civil suit in OS No.98/1995 before the Senior Civil Judge, Gokak. The said suit came to be decreed with cost.
5. Based on the financial implication worked out by the Chief Engineer Irrigation (North) Belgaum, Government has ordered for payment of decreetal amount of Rs.82.45 lakhs which was deposited in the Court which included the interest payment of Rs.51.77 lakhs. Further defendant in that suit was examined as DW.1. However, failed to conduct the aforesaid suit effectively and also failed to convince the Court that excavation work of 23956 c.m done by the contractor comes under soft rock (item No.3 of schedule-B) and not under hard rock, as falsely alleged by the contractor in the said suit. Further defendant failed to produce important and relevant record such as measurement book to prove the case on behalf -5- RFA No. 100426 of 2022 of the Department and due to his negligence and irresponsibility in defending suit in OS No.98/1995, the Senior Civil Judge, Gokak, Court decreed the suit against the Government and the Government had to pay Rs.51,77,000/- to the contractor towards an interest.
6. Therefore, the Government is entitled to recover such amount from defendant due to the negligent act of defendant. Hence, the Government had filed a suit before the trial Court.
7. After the institution of the suit, defendant appeared through his counsel before trial Court and filed the written statement inter-alia contending that the claim of the Government is false, frivolous and erroneous; all allegations made in the plaint against the defendant are false and baseless, the suit is not maintainable either in law or on facts. The allegations that department failed to take its stand for inclusive of disputed item under soft rock (item No.2 of schedule-B) inspite of hard rock (item No.3 of schedule-B) and also did not produce important records such as measurement book to prove its claim, all are false and denied by the plaintiff. -6- RFA No. 100426 of 2022 The allegations that defendant failed to prove and convince the Court that excavation work of 23956 c.m done by the contractor comes under soft rock and not under hard rock. The allegations that defendant negligently and irresponsibly conducted the suit in OS No.98/1995 and thereby the Government had to pay a sum of Rs.51,77,000/- to the contractor towards interest is denied. According to defendant, the excavated work of 23956 c.m done by a contractor, comes under hard rock, which required blasting and not under soft rock and the trial Court come to the conclusion that, on the basis of commissioner report, the excavation work done by the contractor, was done in hard rock, which requires blasting and hence the trial Court had rightly passed judgment in OS No.98/1995.
8. The defendant never negligent during his service and he never acted as irresponsible public servant, in defending suit in OS No.98/1995 and in fact he defended the said suit effectively and defendant had produced all relevant document before the trial Court, as per the advice of Assistant Government Pleader. On all these grounds, defendant is not liable to pay a sum of Rs.51,77,000/- to the State Government -7- RFA No. 100426 of 2022 and hence, the suit filed by the plaintiff is stated to be barred by limitation and there is no cause of action for the suit, on all these grounds defendant prayed for dismissal of the suit.
9. On the basis of the pleading the following issues have been framed by the trial Court:
ISSUES
1. Whether plaintiff proves that, the defendant is negligent in conducting O.S. No.98/1995 on the file of civil Judge (Sr. Dn) Gokak effectively and failed to prove that excavation work of 23956 cum done by plaintiff contractor comes under soft rock (item no.2 o9f schedule B) and not under rock(item No.3 of schedule B)?
2. Whether plaintiff further proves that due to negligent act of the defendant the said suit was decreed and plaintiff was made to pay Rs.51.77 lakh along with interest ?
3. Whether suit is barred by limitation ?
4. Whether this Court has no jurisdiction to try the suit ?
5. Whether plaintiff is entitled to recovery of Rs.51.77 lakh along with interest at the rate of Rs.12% prayed ?-8-
RFA No. 100426 of 2022
6. What order or decree ?
ADDITIONAL ISSUE
1. Whether the plaintiff proves that defendants No.1A and 1B are liable for the suit claim of the plaintiff ?
10. In order to prove the case of the plaintiff Sri. S.J. Dharanendrakumar the Officer of plaintiff was examined as PW.1 who is retired from service and he did not tender himself for cross-examination hence, his evidence has been discarded. Plaintiff also examined PW.2 Sri. Nayakarandahalli Champla Naik Dhidambarlal the Executive Engineer. Sri. Chandrakant Devappa is examined as PW.3 and the plaintiff relied upon in all 39 documents as Ex.P.1 to 39 and on behalf of the defendant, defendant No.1(b) Sri. Vishwanath Malleshappa Umadi the son of deceased defendant has been examined as DW.1 and relied upon one document as Ex.D.1 and closed their side.
11. FINDING OF TRAIL COURT:
Based on the above oral and documentary evidence, the trial Court held that the plaintiff failed to prove that the defendant was negligent in defending OS No.98/1995 on the -9- RFA No. 100426 of 2022 file of Senior Civil Judge, Gokak, effectively and failed to prove that excavation work of 23956 c.m done by plaintiff contractor, comes under soft rock and not under hard rock and hence, the defendant is not liable to pay any suit claim, as claimed by the plaintiff. The trial Court further held that the suit of the plaintiff is barred by limitation and the trial Court also held that it has no jurisdiction to try the suit. Hence, the trial Court declined to decree the suit of the plaintiff. Aggrieved by the impugned judgment and decree passed by the trial Court the State has filed this appeal.
12. Heard the arguments of learned counsel for the lis.
13. The Contention of Appellant:
The judgment and decree passed by Senior Civil Judge and JMFC, Nippani in OS No.88/2017 dated 29.03.2019 is contrary to the law and facts; the trial Court has not assigned any valid reasons while passing the impugned judgment and the trial Court has completely erred; the trial Court failed to look into the fact that excavation was done in hard rock with intensive blasting and department failed to argue it's stand for
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the blasting of soft rock, instead of hard rock; the trial Court has erred in appreciating the defence taken by defendant in OS. No.98/1995 and the trial Court also failed to consider the aspect that the defendant failed to produce the measurement book to prove it's case on behalf of the department; the trial Court has failed to look into the liability of defendant towards the Government and the trial Court has also failed to consider that when the party does not put forth his case by leading evidence, an adverse interference had to be drawn against him and this aspect of law has not been considered by the trial Court.
14. On perusal of the evidence of DW.1, it appears that he has not made any effect to produce any relevant documents in support of contention of department, which lead to decreetal of the suit against the Government and the trial Court also failed to find out the tortious liability of the defendant towards the Government Department. On all these grounds the appellant State Government prays to allow the appeal.
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RFA No. 100426 of 2022
15. After institution of appeal the respondent appeared through his counsel. Heard the arguments of the learned counsel for the appellant and respondent and perused the materials on record.
16. The following points that would arise for our consideration are as under:
POINTS
1) Whether the appellant State prove that the defendant negligently and irresponsibly conducted OS No.98/1995 before the Senior Civil Judge, Gokak and as such the court decreed the suit against the Government, of the reasons that defendant failed to produce the measurement book, hence, the appellant/ State had to pay a sum of Rs.51,77,000/- to the contractor ?
2) Whether the respondent proved that the suit is barred by Law of limitation ?
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RFA No. 100426 of 2022
3) Whether the judgment and decree passed by the trial Court is capricious and call for interference of this Court ?
4) What order ?
Point Nos.1 and 2:
17. Point Nos.1 and 2 are taken together for
discussion as they are interlinked and to avoid the repetition of facts. In the instant appeal, the specific contention of the appellant/ State is that, the defendant was working as Executive Engineer, G.R.B.C.C. Division No.4, Ghataprabha during 13.08.1997 to 02.08.2000. The construction of Chikkodi Branch Cenal KM.36 (Balance earth worth work and lining) costing Rs.32.14 lakhs was entrusted to M/s. Shetty's Private Limited, Hubballi, on contract basis as per agreement No.IRC.IRC.14 for 18 months, excluding mansoon period. The contractor gave a progress of Rs.26.27 lakhs, up to the extended period of March-1991, but he stopped the work from April-1991, by putting certain claim pertaining to the work but the claim was not accepted by the Chief Engineer, Irrigation Department, Belagavi and hence a contract was rescinded in
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RFA No. 100426 of 2022October-1992, at the risk and cost of the contract, as he failed to resume the work. As the matter cannot be settled through an Arbitrator, the contractor had filed a suit in OS No.98/1995. On the contrary, the defendant has denied the contention of the appellant contending that he never negligent in his duty and he defended OS No.98/1995 diligently.
18. In order to prove the claim of plaintiff, the officer of plaintiff department examined on oath as PW.1 and his examination in chief he has reiterated the averments made in the plaint. As PW.1 retired from the service and he did not tendor himself for cross-examination, his evidence has been expunged, therefore, Sri. Nayakarandahalli Champla Naik Dhidambarlal and Sri. Chandrakant Devappa have been examined as PWs.2 and 3, in their evidence they have reiterated the averments made in the plaint and in support of their oral evidence, they have relied upon 39 documents as Ex.P.1 to Ex.P.39. PW.2 has under gone intensive cross- examination by the counsel for defendant. In the cross- examination he has stated that since September-2016 he has been working in the Department and he has admitted that there was an agreement in the year 1992 and the Contractor
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RFA No. 100426 of 2022had filed the suit in OS No.98/1995, which was in respect of Chikkodi Branch cenal KM.36 and he also admitted that the Contractor did his work from 1987 to March-1991. PW.2 has categorically admitted that the contractor excavation soft rock for a tune of 3900 from hard rock 35,824 cubic meters and he further admitted that though the contractor excavated hard rock for a tune of 239 cubic meters, the plaintiff department paid at the rate of soft rock a excavation of soft rock. On perusal of the cross-examination of PW.3 he admitted that the work carried out by the Contractor in respect of hard rock. PW.3 also admitted that on the basis of the material placed before the trial Court, in OS No.98/1995, the Court granted decree against the State Government and in favor of the Contractor. However, the PW.3 had denied the suggestion that defendant had conducted the said case effectively and efficiently.
19. During the pendency of the suit defendant- Mallappa Dundappa Umadi died. Hence, his legal representatives were brought on record, hence, Sri.Vishwanath Mallesh Umadi (defendant No.1), the son of defendant examined on oath and reiterated the averments made in the
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RFA No. 100426 of 2022written statement. Though DW.1 admitted the facts that his father was working as Executive Engineer in the plaintiff Department during the relevant period. However, the allegations made by the plaintiff that his father was irresponsible and he was not diligent in conducting the suit.
20. In the light of the above evidence the trial Court came to the conclusion that the plaintiff failed to prove his case. On perusal of the Ex.D.1 judgment passed in OS No.98/1995, it appears that one Sri. T.K.Timmapa has proved that he was doing contracting work and he was maintaining the measurement book, the question of negligence on the part of defendant does not arise. Further the trial Court in OS No.98/1995 decreed the suit on the basis of the documents and Commission Report and the fact that the Contractor had done excavation of hard work and blasting. As the Department clear the bill for excavation of rock at the rate of soft rock, the Contractor approached the Court of law. As the Commissioner himself visited the spot and submitted his report and opined that the Contractor had done excavation hard rock and blasting, the question of paying bill for the soft rock would not be arisen and it is relevant that the defendant was not working
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RFA No. 100426 of 2022as Executive Engineer during the relevant period and he was transferred. If defendant was negligent on his part, in the year 2001, when the defendant was retired (31.10.2001) from the service, the Department itself ought to have prosecuted or took action in accordance with law. In the instant case, it is not forth coming that any action taken by Government Department.
21. After perusal of the entire material on record and the findings of the trial Court it appears that plaintiff had filed suit against the defendant for recovery of amount for the negligent act of the defendant, as he failed to defend the suit in proper manner and he failed to produce the measurement book before the trial Court in OS No.98/1995. Under these circumstances, it is just and necessary to analyse the term "Negligence". As per Oxford Dictionary the term negligent means, "the failure to give someone or something enough care or attention". As per Law Lexicon Dictionary, the term negligence means, "failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not". On perusal of the above terms, in the light of the contention taken by the plaintiff and the fact that defendant
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RFA No. 100426 of 2022was not working during the relevant period and one Timmappa was working as an Executive Engineer, the question of negligently defending the suit i.e., OS No.98/1995 does not arise. Therefore, the plaintiff have failed to prove that defendant had negligently and irresponsibly conducted the suit in OS No.98/1995 and he intentionally not produced measurement book before the Court in the aid of defence of the State Government for which the Government has got loss and the plaintiff also failed to prove that it is due to negligence on the part of the defendant, the plaintiff had to pay a decreetal amount as ordered by the trial Court in OS No.98/1995. In all probability the defendant is not liable to pay any amount as claimed by the plaintiff.
22. So far as limitation point is concerned, the defendant retired from the service on 31.10.2001 and the suit was filed in the year 2017 i.e., after 16 years of retirement.
23. As per KCSR Rules 214 (2)(b)(i) and (ii) contemplates that after amendment to the said rule dated 18.10.1990 a Departmental Enquiry against the deliquent shall not be instituted in respect any event which took place more
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RFA No. 100426 of 2022than 4 years before such institutions and if any decriminalize proceeding, if any instituted by the Government, while Government Servant is in service, cannot be instituted after 4 years, the cause of action caused or the event took place. On perusal of the evidence, defendant retired from the service on 31.10.2001. If the defendant were responsible for the suit claim, the concerned department ought to have taken action against the defendant immediately or to file a suit against the defendant within the limited period by the plaintiff. The State has filed the present suit after 16 years of the retirement of defendant and on perusal of Rule 214 of KCSR and Department or judicial proceedings, if any institute by the Government, while the Government Servant was in service cannot be instituted, 4 years after the cause of action arise. The defendant retired from services on 31.10.2001 and the suit was filed in the year 2017, absolutely the suit of the plaintiff is barred by limitation also. As per the Karnataka Financial Code Rule 389, suit was not instituted within a time against the defendant and therefore the question of granting exemption under Article 112 of Limitation Act, would not be raised which
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RFA No. 100426 of 2022itself is not a ground to consider the fact that the suit is filed within time.
24. On perusal of the oral and documentary evidence, contention of the appeal and the various legal aspects, the plaintiff has failed to prove its case. Hence, the trial Court has dismissed the suit of the plaintiff, on the ground that the defendant never defended OS No.98/1995 before the trial Court at Nippani.
25. Looking into any angle, the impugned judgment, when examined, with reference to the factual aspects of the case, the relevant provisions and also the statement of law sited supra, we are of the opinion that the trial Court has properly analyzed the facts, applied it's mind in the relevant provisions of law and the findings recorded by the trial Court is not perverse, illegal and same have not given rights to any substantial question of law. Accordingly, we answer point Nos.1 and 2 in the negative.
26. Point No.3:
In view of the facts and circumstances of the case and the possession of law, the trial Court has rightly dismissed the suit
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of the plaintiff, in our opinion is not perverse, capricious, illegal, which did not cause for any interference. Hence, the appeal filed by the appellant deserves to be dismissed. Accordingly, in view of answering point Nos.1 and 2 against the plaintiff, we answer point No.3 in the negative.
Accordingly, the following:
ORDER
i) The appeal filed by the appellant is dismissed with cost.
ii) The judgment and decree passed by the
learned Senior Civil Judge and JMFC.,
Nippani, in OS No.88/2017 is hereby
confirmed.
SD/-
JUDGE
SD/-
JUDGE
PJ
List No.: 1 Sl No.: 20