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1992 DIGILAW 973 (SC)

Syed And Company v. State Of J & K

1992-11-20

S.MOHAN, S.P.BHARUCHA

body1992
(1) BOTH these appeals by grant of special leave can be dealt with under a common order as they arise from the same proceedings. (2) DURING the period from 7/03/196 3/04/1965, lease agreements were executed between the government of State of Jammu and Kashmir and private lessees for cutting timber from the forest of Jammu and Kashmir. These leases were held to be void by a full bench decision, rendered on 15/06/1973, of the Jammu and Kashmir High court. The decision is reported in State of jammu and Kashmir v. Goodwill Forest Lessees. In order to get over the judgment, the J & K Forest Act, 1987 was amended by incorporating S. 52-A, 52-B and 52-C in the Act whereby the prescribed authority was constituted to determine the quantum of advantages received by the parties with reference to leases which were rendered void as a result of the judgment of the full bench. (3) PARTIES will be referred to as arrayed in C.A. No. 544 of 1985. (4) ON 7/01/1976 the State filed a suit for recovery of a sum of Rs. 7,61,953.52 on account of royalty arrears together with interest against Syed & Co. On 8/08/1981, the prescribed authority rendered a judgment holding that the respondent has in all paid Rs. 25,37,384.15; against this amount he had actually removed timber valued at Rs. 21,36,611.50. In the result, it was held that he would be entitled to be paid a sum of Rs 3,45,762.09. Ultimately, the suit was dismissed. However, the authority was directed to draw up decree sheet of the order which would include the figures mentioned above. Aggrieved by this order. Civil First Appeal No. 59 of 1981 was preferred to the High court. While the appeal was pending, the High court in Malik Abdal Ahmad Shah Jalil Ahmad Akhtar v. State of Jamma and Kashmir held that it was open to the prescribed authority to calculate the value of timber removed by the lessees. In view of this decision an application for amendment under Order 41 Rule 27 of the Code of Civil Procedure was preferred. The High court rejected the application on two grounds, one, it was hopelessly belated and second, in any event, the party could not be allowed to lead in evidence on a plea not taken by it though it was supported by the judgment in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar. The High court rejected the application on two grounds, one, it was hopelessly belated and second, in any event, the party could not be allowed to lead in evidence on a plea not taken by it though it was supported by the judgment in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar. In the result, the appeal was dismissed. But at the same time, it was held that the authority under Section 52 of the Jammu and Kashmir Forest Act, 1987 was not competent to direct the drawing up of a decree. Therefore, that part of the order of the prescribed authority was set aside. The State has preferred Civil No. 544 of 1985 against the dismissal while the respondent has preferred Civil No. 543 of 1985 challenging that part of judgment, directing deletion of drawing up of the decree. (5) THE only contention urged on behalf of the State is that by virtue of the ruling in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar it is open to the prescribed authority to calculate the value of timber removed with reference to the market rates prevailing on the respective dates. Hence, evidence ought to have been allowed on that aspect. All the more so because the prayer by the State before the prescribed authority was alternative in character. That was to the effect a decree might be granted in favour of the State for the amount of price of the timber extracted from the inception of the lease up to the period extended by the authority on the current market value. Therefore, there was enough pleading with reference to this prayer that being the evidence ought not to have been shut out. Thus, the rejection of the application under Order 41 Rule 27 is wrong. (6) AS regards the finding of the High court that it was hopelessly barred by limitation, that finding overlooks the fact that the necessity for amendment arose only in view of the judgment in Malik Abdul Ahmad Shah Jalil Ahmad Akhtar. Therefore, limitation should not have been put against the State. (7) IN opposition to this, the learned counsel for the respondent would urge by looking at the entire pleadings of the State before the prescribed authority, it can be seen nowhere, it has been stated as to what exactly was the basis for claiming the price of timber extracted by the respondent. (7) IN opposition to this, the learned counsel for the respondent would urge by looking at the entire pleadings of the State before the prescribed authority, it can be seen nowhere, it has been stated as to what exactly was the basis for claiming the price of timber extracted by the respondent. Without specific pleadings in that regard, evidence could not be led in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading. (8) THEREFORE, without amendment of the pleadings merely trying to lead evidence is not permissible. The High court was right in holding so. In addition on the point of limitation it has held correctly. (9) AS regards the Civil No. 543 of 1985, the contention of the appellant Syed and Company is as under: NO doubt, under Section 52 of the Act, the prescribed authority could not have drawn up a decree. Nevertheless while setting aside this order, the High court should have directed that it was open to the party to recover the same in accordance with law. This court may give such directions. (10) WE have carefully considered the above submissions. We are of the view that no exception could be taken to the judgment of the High court. No doubt a prayer was made before the prescribed authority by the State requesting that a decree might be granted for the amount of price of timber extracted by the party. But that prayer alone was not enough. The pleadings ought to have been there as to what exactly was the basis of the prayer. We are afraid that the entire case of the State before the prescribed authority proceeded only with reference to royalty and interest thereof, but not with reference to the price of the timber. It is true that in Malik Abdal Ahmad Shah Jalil Ahmad Akhtar it has been held that the prescribed authority under Section 52 is empowered to determine the price of timber extracted. The State at that stage, should have amended the pleading and incorporated the basis for the claim for the price of timber. But for reasons best known the State merely took out an application under Order 41 Rule 27 to lead in evidence. Of course, evidence could have been allowed if there were pleadings to that effect. In this case, there was none. But for reasons best known the State merely took out an application under Order 41 Rule 27 to lead in evidence. Of course, evidence could have been allowed if there were pleadings to that effect. In this case, there was none. It is settled law that no evidence can be let in without the pleading. The High court was fully justified in rejecting the application. (11) WE are equally convinced that the High court was right in setting aside that part of the order of the prescribed authority asking the drawal of the decree in accordance with the observations contained in paragraph 7 of the order. The prescribed authority is not a civil court. However, we may add that it is open to the appellant in Civil No. 543 of 1985 (Syed & Co.) to recover the said amount in accordance with law. The appeals are dismissed. However, there shall be no order as to costs, (12) IN view of the above order, this Civil will stand dismissed. There shall be no order as to costs.