Himachal Pradesh High Court
H.P. State Forest Corporation Ltd vs Sh. Nasib Singh on 5 January, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 161 of 2008
Date of Decision: 05.1.2019.
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H.P. State Forest Corporation Ltd. .........Appellant.
Versus
Sh. Nasib Singh ......Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting1? Yes.
For the appellant: Mr. Rajesh Verma, Advocate.
For the respondent: Ms. Sanjay Jaswal, Advocate.
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Sandeep Sharma, J. (Oral)
Instant appeal filed under Section 100 CPC, is directed against the judgment and Decree dated 17.11.2007, passed by the learned Additional District Judge, Fart Track Court, Kangra at Dharamshala, in Civil Appeal No. 9- J/XIII-2006, dated 17.11.2007, affirming the judgment and decree dated 21.4.2006, passed by the learned Civil Judge (Sr.Div.) Jawali, District Kangra, H.P. in CS No. 410 of 1997, whereby suit for recovery having been filed by the appellant-plaintiff (herein after referred to as "the plaintiff"), came to be dismissed.
2. Necessary facts, as emerge from the record are that the plaintiff, which is a body corporate, constituted under the Indian Company Act, having its head office at Shimla and Unit Forest working Division at Fetahpur, District Kangra, H.P., filed suit for recovery against the defendants, averring therein that pursuant to tender invited by the plaintiff for extraction of resin by rill method and its carriage for lot No. 1/4/95/Kotla, defendant submitted his tender and Whether reporters of the Local papers are allowed to see the judgment?
::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -2-being lowest bidder, he came to be awarded work on 15.3.1995. Defendant No.1 executed an agreement Ext.PW1/C, whereafter he was allotted the work vide letter Ext.PW1/B. Defendant No.2, who is the son of defendant No. 1, .
representing himself to be a special power of attorney holder of his father, executed a document on his behalf. However, fact remains that defendant No.1 also executed an agreement on 15.9.1995 (Ex.PW1/D). As per the agreement, defendant No.1 was to extract and hand over the pure resin weighing 200.90 Qtls from 4900 blazes, but since defendant supplied resin weighing 129.38 Qlts., there was shortfall of 71.52 Qtls. There was a clause providing for compensation @ Rs.2500/- per quintal in the agreement and as such, plaintiff by way of suit, as referred herein above, claimed that it is entitled to compensation amount to the tune of Rs. 1,78,800/- on account of shortfall.
Plaintiff also claimed that defendant No.1 also caused damage to unmarked trees and hence, is liable to pay sum of Rs. 1120/-. Plaintiff also claimed cost of the resin weighing 129.38 @ Rs. 254/- per qtls., amounting to Rs. 32,863/-. Beside above, plaintiff also claimed that it is entitled to adjust the security amount of Rs.
5000/- and in total, sum of Rs. 1,64,498/- is due after adjustment. Plaintiff claimed that since despite repeated reminders, defendant No.1 is not agreeing to pay amount as calculated herein above, therefore, it is compelled to file the suit.
3. Defendant by way of filing written statement opposed the aforesaid claim and claimed that license of defendant No.1 was never renewed after 31.3.1995 and he did not remain in the business of labour supplies mate after said date. He also claimed that no agreement was executed and ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -3- no work was carried out therefore, suit be dismissed. On the basis of aforesaid pleadings adduced on record by the respective parties, court below farmed following issues:-
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"1.Whether the parties entered into an agreement dated 15.3.95 as alleged?- OPP.
2. Whether the defendant No.1 violated the terms and conditions of the agreement?- OPP.
3. Whether the defendants did not supply pure resin weighing 200.90 Quintals as per agreement?-OPP.
4. Whether the defendants damaged the unmarked trees as alleged?- OPP.
5. Whether the plaintiff has no cause of action?-OPD.
6. Wehther the suit is not maintainable ?-OPD.
7.Whether the plaintiff has no locus-standi to sue?- OPD.
8. Relief."
4. Plaintiff with a view to prove its cause examined two witnesses, whereas defendant examined himself as PW1. Learned court below subsequently vide judgment dated 21.4.2006, dismissed the suit of the plaintiff and held it not entitled to the amount as claimed in the suit.
5. Being aggrieved and dissatisfied with the disposal of the suit, plaintiff filed appeal under Section 96 of the CPC in the Court of learned Additional District Judge, Fast Track Court, Kangra, at Dharmashala, who vide judgment dated 17.11.2007, dismissed the appeal, as a consequence of which, judgment of learned trial Court, came to be upheld. In the aforesaid background, appellant has approached this Court in the instant proceedings, praying therein to allow its suit after setting aside judgments and decrees passed by the court below.
6. This Court vide order dated 10.7.2008, admitted the instant appeal on the following substantial questions of law :-
"1. Whether the trial Courts below have wrongly placed reliance on the statements of PW-1 are not the findings of the Courts ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -4- below materially effected on account of non-consideration of material evidence and documents Ext.PW-1/A to Ext.PW-1/E and Ext.PW-2/A to Ext.PW-2/H thereby materially prejudicing the case of the appellants?
3. Whether the Courts below have wrongly interpreted and construed the clause 30 and clause 23 of the agreement Ext.PW-
.
1/D?"
7. I have heard the learned counsel for the parties as well as gone through the record of the case.
8. Having carefully perused the evidence collected on record by the respective parties, be it ocular or documentary, this Court is not persuaded to agree with Mr. Rajesh Verma , learned counsel representing the plaintiff that courts below have not appreciated the evidence in its right perspective, rather this Court finds that both the courts below have dealt with matter very meticulously and there is no scope left for this Court for interference. Close scrutiny of evidence vis-à-vis impugned judgments and decrees passed by the court below, compels this Court to conclude that both the courts below have appreciated the evidence in its right perspective and there is no misreading, misappreciation as argued by the learned counsel for the appellant.
9. Since during the course of the arguments, this Court had an occasion to peruse the evidence led on record by the respective parties vis-à-
vis impugned judgments and decrees passed by the courts below, this Court does not find any illegality and infirmity in the finding rendered by the court below with regard to agreement in question Ext.PW1/C and signature thereupon of defendant because careful perusal of statements of PW1 and PW2, which if read in its entirety, clearly suggests that defendant namely Nasib Singh, had entered into an agreement Ext PW1/C with the plaintiff. However, perusal of tender Ext.PW1/A and letter Ext.PW1/B, shows that same was issued ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -5- for 5390 blazes with minimum yield of 41 qtls per section @ 254 per qtls.
Agreement Ext.PW1/C, has also been entered for minimum quantity at 41 quintals and delivery thereof at Bhali Road side depot. Similarly, subsequent .
agreement dated Ext.PW1/D stands entered into for 4900 blazes minimum quantity of the pure resin has been specified to be 200.90 qtls and as such, it is apparent that the parties had entered into agreement for the supply of 200.90 qtls. of pure resin.
10. Close scrutiny of agreement Ext.PW1/D reveals that balance final payment was to be made after the determination of percentage of Sakki and other impurities in the resin, which was to be done in the turpentine factory of the corporation, to which, the resin was to be supplied, but close scrutiny of Ext.PW1/C further reveals that quantity of pure resin for payment was to be determined after detecting Sakki and in case, Sakki was found more in factory, excess payment was to be deducted from the security of defendant and hence, it can be safely concluded that the quantity of pure resin was to be determined after detecting Sakki and other impurities from the resin in the turpentine factory.
11. Interestingly, this Court was unable to lay its hand to the record, if any, of resin and turpentine factory, made available during the trial. PW1 M.S. Parmar, deposed that resin is weighed in the presence of the contractor and receipt whereof is handed over to the contractor. He further stated that tins were sent to resin and turpentine factory, Bilaspur, whereafter the record is maintained regarding the quantity of resin delivered by the contractor. He also admitted that record is also maintained regarding the sending of the resin to ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -6- resin and turpentine factory at Bilaspur, but it is not understood that why such record never came to be produced before the court below. Since record was the only best proof showing the exact quantity supplied by the plaintiff pursuant .
to work awarded in his favour, learned court below rightly held that in the absence of record, it cannot be said that plaintiff succeeded in establishing that defendants have not supplied pure resin weighing 200.90 qtls as per agreement.
12. Though documentary evidence placed on record reveals that plaintiff with a view to prove shortfall, placed on record certain documents/ letters, but definitely, they could not be made basis by the court below to conclude that there was shortfall, if any, in the supplies made by the defendants, especially, when person responsible for maintaining the record with regard to supply and quality of resin is not examined. PW1 in his cross-
examination admitted that he was never having record regarding the return of empty tins. He also admitted that tins are weighed in the presence of the Contractor. Though, PW2 Narender Kumar stated that various letters were issued to the defendant on the basis of shortfall, but no reply was issued, but as has been noticed herein above, there is no evidence led on record by the plaintiff-department with regard to the quantity of resin submitted/supplied by the defendant and as such, court below rightly concluded that it cannot be said that defendant failed to supply pure resin to the extent of 200.90 qtls.
13. Clause 23 of Ext.PW1/D i.e. subsequent agreement executed by the plaintiff with defendant Gian Singh, reveals that running payments up to 30% of the total value of the work done could be made after verification of the ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -7- Assistant Manager concerned/L.S.M's having extracted and stacked the resin in the forest at an approved place and another 50 percent after delivery of resin at the notified road side depot and balance final payment after percentage of .
Sakki and impurities is determined in the resin and turpentine factory of the corporation to which resin is supplied.
14. Interestingly, in the instant case, there is no evidence led on record by the plaintiff that verification, if any, ever came to be made by the Assistant Manager concerned about Agent/L.S.M's having extracted and stacked the resin at the approved places because PW1 M.S. Parmar deposed on behalf of the plaintiff that work in question came to be awarded to defendants vide r Ext.PW1/C and Ext.PW1/D. If his statement is read in its entirety, there is no deposition/mention, if any, with regard to verification, if any, made by the Assistant Manager concerned about the agents having extracted and stacked the resin in forest at an approved place at the time of making running payment up to 30%. Similarly, clause 30 of the agreement referred herein above, deals with the disbursement of wages to the labourers regularly and in the event of non-payment of wages by the contractor or LSM, Divisional Manager, was at liberty to disburse wages to the labourers out of the payment due to labour supply mates. But in the instant case, no such action ever came to be initiated on behalf of the plaintiff, which itself suggests that labour engaged, if any, by the defendants for extraction of work pursuant to allotment made in his favour, never raised dispute, if any, with regard to payment of wages payable to them. Otherwise, in terms of clause 30 of the agreement, plaintiff department on its own would have deducted amount from the bills of ::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -8- defendants, which is not the dispute in the present case. Substantial questions of law are answered accordingly.
15. This Court is also in agreement with the submissions made by the .
learned counsel for the respondent that this Court has very limited jurisdiction to re-appreciate the evidence in the instant proceedings, especially in view of the concurrent findings recorded by the courts below. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by the Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015) 4 SCC 264, relevant para whereof reads as under:-
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
16. It is quite apparent from the aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned courts below cannot be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by the learned courts below, rather same are based upon correct appreciation of evidence and as such, same deserves to be upheld.
::: Downloaded on - 09/01/2019 23:03:32 :::HCHP -9-17. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which were further upheld by the first appellate Court, do not warrant any interference of this Court .
as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appear to be based on correct appreciation of oral as well as documentary evidence.
Hence, the appeal fails and dismissed accordingly. There shall be no order as to costs.
5th January, 2019 (Sandeep Sharma),
manjit
r Judge.
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