Himachal Pradesh State Financial Corporation Ltd @APPELLANT@Hash Vidya Devi and Others

Sandeep Sharma, J.

Instant Regular Second Appeal is directed against judgment and decree dated 1.5.2008 passed by the learned District Judge, Hamirpur, District

Hamirpur, Himachal Pradesh in Civil Appeal No. 79 of 2006, reversing the judgment and decree dated 30.3.2006 passed by the learned Civil Judge

(Senior Division), Division Hamirpur, HP in Civil Suit No. 84 of 1997, whereby suit filed by the appellant-plaintiff (hereinafter, ‘plaintiff’) for

recovery of Rs.82,930/- against the respondents/defendants (hereinafter, ‘defendants’), has been dismissed.

Facts, in brief, as emerge from the record are that Jagat Ram (predecessor-in-interest of the respondents-defendants) had entered into an

agreement with the plaintiff for extraction of resin from Lot No. 29/R/94. As per aforesaid agreement, Jagat Ram was required to extract 188.42

quintals of resin from 4096 blazes but the defendant could achieve the yield to the tune of 142.08 quintal and as such, there was shortfall of 46. 34

quintals, hence, as per agreement inter se parties, defendant was liable to pay Rs.2500/ - per quintal to the plaintiff on account of shortfall. In the

aforesaid background, plaintiff claimed a sum of Rs.1,15,850/-. Plaintiff also claimed that 2670 blazes of defendant were found defective as such,

penalty at the rate of Rs.2/- per blaze is also liable to be paid by the defendant i.e. 2670x 2=5340. Apart from above, plaintiff also claimed that the

defendant had caused illicit extraction from 194 blazes, as such, he is liable to pay penalty to the tune of Rs.29/- per blaze, which comes out to

194x29=5626. Plaintiff further claimed that for the aforesaid extraction of resin, a sum of Rs.21,000/-as charges for work done was paid to the

defendant. Plaintiff had also paid income tax to the tune of Rs.1244/-. Plaintiff in total claimed a sum of Rs.22,784/- on account of cost price of the

tools, which were handed over to the defendant by it as well as money paid to the defendant.

Though as per calculation made by the plaintiff, defendant was liable to pay a sum of Rs.1,49,602/-, but since a sum of Rs.66,672/- stood already

deducted from the account of the defendant, it claimed a sum of Rs.82,930/- as decreetal amount by way of aforesaid suit for recovery.

Legal representatives of Jagat Ram, who had actually entered into agreement with the plaintiff, repudiated the claim of the plaintiff on the ground

that they have no knowledge regarding agreement, if any, inter se parties. They also stated that no recovery was pending against deceased Jagat Ram

and there was no shortfall of resin, on the part of Jagat Ram, as such, suit having been filed by the plaintiff deserves to be dismissed. Plaintiff by way

of replication, denied the contents of written statement and reaffirmed its claim as put forth in the plaint.

Learned trial Court, on the basis of pleadings of the parties, framed following issues for determination:

“1. Whether the plaintiff/corporation is entitled to recover a sum of Rs.82930/- from the defendant with costs alongwith interest @18% p.a. being

price, damages and cost of tools for non-supply of pure resin as per agreement deed dated 5.3.1994 as alleged? OPP.

Whether the plaintiff has no cause of action and locus-standi to file the suit? OPD

Whether the plaintiff is estopped from filing the suit by its act and conduct? OPD

Whether the suit is barred by time? OPD.

Relief.â€​

Subsequently, the learned trial Court, on the basis of evidence led on record by respective parties, decreed the suit of the plaintiff for a sum of

Rs.49,178/- against the defendants alongwith interest at the rate of 5% per annum. Defendants, being aggrieved and dissatisfied with the judgment and

decree passed by learned trial Court, preferred an appeal before the learned District Judge, Hamirpur, Himachal Pradesh, who, vide judgment and

decree dated 1.5.2008, allowed the appeal, as a consequence of which, judgment and decree passed by learned trial Court came to be reversed. In the

aforesaid background, plaintiff has approached this court in the instant proceedings, praying therein to decree its suit in toto, after setting aside the

judgment and decree passed by learned first appellate Court.

The Regular Second Appeal came to be admitted by this court on 8.8.2008 on the following substantial questions of law:

“1. Whether the provisions of Section 56 of the Contract Act are attracted to the facts and circumstances of the present case?.

Whether an adverse inference should have been drawn against the respondent/defendant for not appearing as his own witness?â€​

I have heard the learned counsel for the parties and gone through the record carefully.

Having heard the learned counsel representing the parties and perused the evidence, be it ocular or documentary vis-Ã -vis impugned judgment and

decree passed by the learned first appellate Court, this court is not inclined to agree with the contention of Mr. Rajesh Verma, learned counsel

representing the plaintiff that the learned first appellate Court has failed to appreciate the evidence in its right perspective, rather, this court finds that

the learned first appellate Court has dealt with each and every aspect of the matter meticulously and there is no scope of interference by this court.

Factum with respect to execution of agreement, Ext. PW -1/1 inter se plaintiff and defendant is not in dispute, rather, same stands duly proved in

accordance with law. Similarly, this court finds that notices allegedly issued to the predecessor-in-interest of the defendants i.e. Jagat Ram, Ext. PW-

1/2 to Ext. PW-1/4 have been duly proved in accordance with law. Agreement, Ext. PW-1/1 clearly reveals that with effect from 15.2.1994 to

31.12.1994, defendant was to extract 188.42 quintals of resin from 4096 blazes at the approved rate of Rs.391/- per quintal. Evidence on record

clearly suggests that defendant was unable to extract aforesaid agreed yield and there was a shortfall of 46.34 quintals.

Though, as has been taken note herein above, defendant, by way of notices was duly apprised of the shortfall but testimony of PW-6 Bhagirath,

Assistant Manager of the plaintiff clearly reveals that there was a fire in the jungle, which was allotted to the defendant. PW-6 Bhagirath, has

admitted that as per record, 460 blazes were burnt in the fire. He also admitted in his cross-examination that after fire, resetting of blazes used to be

done, whereafter resin could be extracted but, unfortunately, no material evidence has been led on record by plaintiff that after aforesaid fire, blazes

were reset and defendant was authorized to extract resin. Though, in his cross-examination, this witness has denied that due to fire, contractor used to

be compensated but he categorically admitted that after fire, resetting was to be done by the plaintiff.

Interestingly, in the case at hand, though learned trial Court took note of aforesaid candid admission having been made by PW-6, Bhagirath, with

regard to fire in the forests, but it failed to return specific finding, if any, qua the same, as a consequence of which, erroneous finding came to the fore

that too, to the detriment of the defendants, who successfully proved on record that due to fire in the area/forest, 460 blazes were burnt and as such,

he(defendant) was unable to extract agreed quantity of resin. Learned trial Court decreed the suit of the plaintiff for recovery of Rs.49,178/-but it has

not deducted any amount on account of loss of blazes in the accidental fire, which admittedly took place in the jungle in question. As has been noted

herein above, there is no evidence led on record by the plaintiff to prove that blazes were reset. Though the learned counsel representing the plaintiff

stated that the defendant did not report the incident of fire to the plaintiff, but from the testimony of PW-6, it is clear that the incident of fire was very

much in the knowledge of the plaintiff.

As per own case of the plaintiff, cost of one quintal is Rs.2500/- and as such, for such loss, while calculating loss, if any, accrued to Jagat Ram was

to the tune of Rs.52,500/-, as has been calculated by the learned first appellate Court. Had learned trial Court taken trouble to calculate aforesaid

amount, it would not have decreed the suit of the plaintiff for a sum of Rs.49,178/-.

Having carefully perused the material evidence available on record, especially the statement of PW-6, Assistant Manager of the plaintiff, this court

has no hesitation to conclude that the trial court failed to appreciate evidence in its right perspective as such, learned first appellate Court rightly

reversed its findings. Reasoning recorded by the learned first appellate Court, while reversing finding of the learned trial Court is based upon correct

appreciation of evidence adduced on record by the respective parties and as such, same calls for no interference by this court.

Though the appeal stands admitted on two substantial questions of law, as reproduced herein above, but after careful perusal of record and hearing

the arguments of the learned counsel representing the parties, this court finds that in fact no question of law, much less, substantial question of law

arises in the present appeal for determination and as such, no findings qua the aforesaid issues are being recorded specifically.

In view of the detailed discussion made herein above, appeal does not have any merit and as such, is dismissed. Pending applications, if any, are

disposed of. Interim directions, if any, are vacated.