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1998 DIGILAW 88 (HP)

THE MANAGING DIRECTOR, H. P. v. GHINNO RAM

1998-06-11

A.L.VAIDYA, R.L.KHURANA

body1998
JUDGMENT R.L.Khurana, J. The appellants hereinafter referred to as the defendants, having suffered a decree for a sum of Rs. 1,02,865/- with costs and future interest on the decretal amount at the rate of 6% per annum1 from1 "tile Court* of the learned District Judge, Chamba, have come up before this Court by way of the present regular first appeal against the judgment and decree dated 20.11.1990. 2. The brief facts of the case, out of which the present appeal has arisen, may be thus stated. The work of roping down of timber scants by wire spans in respect of Lot No.2 of Chhabaru forest for the year 1985-86 and Lot No. 3 of Dradha forest for the year 1985-86 was awarded to respondents 1 and 2, thereinafter referred to as the plaintiffs, by the defendants. As per the terms of the agreement entered into between the parties, the plaintiffs were to be paid roping down of timber as under :- (a) 50 paise per scant per wire span having the length between 800 meters 1200 meters; (b) 70 paise per scant in case the length of the wire span exceeded 1200 meters in length; (c) In addition to the above, the plaintiffs were to be paid commission at the rate of 12-1/2 % of the amount; and (d) The amount spent for fixing the wire span and for dismantling the same. 3. The work of roping down of the timber in respect of both the lots was completed by the plaintiffs within the stipulated period. According to the plaintiffs, a sum of Rs. 7200/- in respect of Lot No. 3 of 1985-86 (Dradha Forest) is still payable to them by the defendants. In respect of Lot No.2 of 1985-86 (Chhabaru Forest) .the plaintiffs are entitled to recover a sum of Rs. 1,13,665/- (including the refund of the amount of Rs. 5000/- deposited by them with the defendants as security). As against the total amount of Rs. 1,20,865/-due to the plaintiffs in respect of the two lots, the plaintiffs were paid only a sum of Rs. 18,000/-. The remaining "amount of Rs. 1,02,865/- was not paid to them by the defendant’s inspite of repeated demands. The-plaintiffs accordingly filed a suit for the recovery of the amount of Rs. 1,26,006-62 paise (being the principal amount of Rs. 1,02,865/- and interest of Rs. 18,000/-. The remaining "amount of Rs. 1,02,865/- was not paid to them by the defendant’s inspite of repeated demands. The-plaintiffs accordingly filed a suit for the recovery of the amount of Rs. 1,26,006-62 paise (being the principal amount of Rs. 1,02,865/- and interest of Rs. 23,142-62 paise calculated at the rate of 18% per annum). 4. The suit was resisted and contested by the defendants. They admitted that the work of roping down the timber in respect of the two lots was awarded to the plaintiffs. They also did not deny the rates for roping down the timber as claimed by the plaintiffs. It was further not denied that the work was completed within the stipulated period. It was pleaded that whatever amount in respect of the two lots was due to the plaintiffs stands paid to them. 5. The defendants raised a counter claim to the extent of Rs. 1,12,532-30 paise against the plaintiffs. It was averred that the work of roping down the timber in respect of lot No.2 of 1983-85 of Kugti Forest and lot No. 1 of 1983-85 of Dagola Forest was also awarded to the plaintiffs. In respect of such work, the plaintiffs in connivance with, certain officials of the Forest Corporation had received the amount of Rs. 1,12,532-30 paise in excess, which fact came to be known when an enquiry was carried out by the Divisional Manager. It was pleaded that the defendants were entitled to recover the said amount from the plaintiffs. 6. The plaintiffs Vide their replication have denied having received any amount m excess of the amount due to them in respect of lots Rs. 1 of 1983 -85arrd2of 1983-85. It was pleaded that the dispute, if any, in respect of the said two lots has no relation or connection with the dispute involved in the present case. . 7. On the pleadings of the parties, following issues were framed by the learned District Judge:- 1) Whether plaintiffs are entitled for a decree of a sum of Rs. 1,26,000/-and future interest at the rate of Rs. 18%per annum, as alleged ? OPP. 2) Whether suit is not maintainable in the present form? OPD. 3) Whether suit is time barred, as alleged ? OPD. : 4) Whether plaintiffs are estopped to file the present suit by their act and conduct, as alleged? OPD. 1,26,000/-and future interest at the rate of Rs. 18%per annum, as alleged ? OPP. 2) Whether suit is not maintainable in the present form? OPD. 3) Whether suit is time barred, as alleged ? OPD. : 4) Whether plaintiffs are estopped to file the present suit by their act and conduct, as alleged? OPD. 5) Whether plaintiffs have no cause of action, as alleged ? OPD. 6) Whether suit is bad for mis-joinder of the parties ? OPD. 6-A) Whether defendant No.3 is entitled to recover sum of Rs. 1,12,532/-from the plaintiffs, as alleged ? OPD-3. 6-B) Whether the counter claim is within time 7 OPD-3. 7). Relief. 8. Under issue No. 1, the learned District Judge found the plaintiffs to be entitled to recover a sum of Rs. 1,02,865/- from the defendants in respect of the work done by them under lots No.2 of 1985-86 (Chhabaru Forest) and 3 of 1985-86 (Dradha Forest). Issues No. 2 to 6 were found against the defendants. The learned District Judge under issue No. 6-A came to the conclusion that the defendants were not entitled to recover any amount from the plaintiffs in respect of lots No.l of 1983-85 (Dagola Forest) and 2 of 1983 -85 (Kugti Forest). The counter -claim of the defendants was accordingly rejected. Consequent upon such findings a decree for a sum of Rs. 1,02,865/- with costs and future interest at the rate of 6% per annum from the date of suit, that is, 29.12.1987 till the dale of realisation of the amount, was passed in favour of the plaintiffs and against the defendants. 9. We have heard the learned counsel for the parties and have also gone through the record of the case. 10. Admittedly, as stated above, the work of roping down the timber in respect of lots No.2 of 1985-86 and 3 of 1985-86 was awarded to the plaintiffs. The terms and conditions on which such work was awarded are also not in dispute between the parties. While the plaintiffs have claimed that a sum of Rs. 1,02.865/- is due to them in respect of the work done by them under the said two lots, the defendants have pleaded that whatever amount was due to the plaintiffs stand paid by them to the plaintiffs and nothing is due. 11. While the plaintiffs have claimed that a sum of Rs. 1,02.865/- is due to them in respect of the work done by them under the said two lots, the defendants have pleaded that whatever amount was due to the plaintiffs stand paid by them to the plaintiffs and nothing is due. 11. No evidence has been led by the defendants to show that the entire amount due to the plaintiffs in respect of lots No.2 of 1985-86 and 3 of 1985-86 stands paid to the plaintiffs and if so when. The evidence coming on the record rather goes against the defendants, 12. PW-2 Dev Raj who at the relevant time was working as Incharge, Sales Section, under the defendants at Chamba, has categorically admitted that the amounts payable to the plaintiffs in respect of work done by them under lots No.2 of 1985-86 and 3 of the 1985-86 were withheld under die orders of. the Divisional Manager of the defendants and such amounts never came to be paid to the plaintiffs. 13. In view of die evidence coming on the record and in the absence of the evidence by the defendants showing the payment of the amount in respect of lots No. 2 of 1985-86 and 3 of 1985-86, the learned District Judge has rightly held the plaintiffs to be entitled to a sum of Rs. 1,02,865/- from the defendants in respect of the said two lots. 14. Coming to the counter -claim of the defendants. The defendants have averred that a sum of Rs. 1,12,532-30 paise in respect of lot No.l of 1983-85 (Dagola Forest) and 2 of 1983-85 (Kugti Forest) was paid in excess to the plaintiffs, which amount they are entitled to recover from the plaintiffs. 15. Rule 6-A of Order 8, Code of Civil Procedure, deals with ike Counter -claim by the defendant. It provides: "6-A. Counter-claim by defendant -(1) A Defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter -claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence . Has expired, whether such counter-claim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. (2) Such counter -claim shall have the same effect as a Cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim (3) The plaintiff shall be at liberty ii file a written statement answer to the counter -claim of the defendant within such period as may be fixed by die Court. (4) The counter -claim shall be treated as a plaintiff and governed by the rules applicable to plaints." 16, Under sub-rule (4) of rule 6-A quoted above, the counter-claim is to be treated as a plaint and is to be governed by die rules, applicable to plaints. 17. Rule 1 of Order 7, Code of Civil Procedure, provides for die particulars which are required to be stated in a plaint. 18. The provisions contained in rule 1 of Order 7 are imperative (See : Hans Raj Kalra & Ors. v. Kishan Kalra & Ors. AIR 1977 NOC 267 (Delhi). A bare perusal of the written statement filed by the defendants raising the counter-claim shows that the necessary particulars required to be stated in the plaint have not been pleaded therein. Since the counter-claim is to be treated as a plaint, all particulars required to be stated under rule 1 of Order 7, Code of Civil Procedure, have necessarily to be pleaded. On the failure of the defendants to comply with the imperative provisions, their counter-claim is liable to be rejected under Order 7 Rule 11, Code of Civil Procedure. 19. Even otherwise, on merits as well, such counter-claim has been rightly dismissed by the learned District Judge since the defendants have failed to produce necessary evidence in supportthereof. 20. Resultantly, the present appeal, being devoid of merit, is dismissed with costs quantified at Rs. 3000/-. Appeal dismissed.