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2006 DIGILAW 425 (HP)

H. P. State Forest Corporation v. Ram Singh

2006-12-29

DEEPAK GUPTA, SURINDER SINGH

body2006
JUDGMENT : Surinder Singh, J. The appellant-plaintiffs herein, have filed the instant original side appeal, feeling aggrieved and dis-satisfied with the impugned judgment and decree passed by the learned Single Judge in Civil Suit No. 15 of 1990 dated 5th June, 1998 whereby the suit filed by them was dismissed. 2. In brief, the facts giving rise to the instant appeal are: The appellants had filed a civil suit for the recovery of Rs. 12,48,460, against the respondent-defendant, for the loss of timber caused by the respondent while executing the work assigned to him. It was averred by the appellants that tenders were invited by them for khad-floating, stacking, carriage etc. of timber with respect to various lots in the Forest Working Division, Chamba. The work of lot No. 5/84-86 was awarded to the respondent-defendant and agreement dated 10th September, 1986 was executed. In terms of the aforesaid agreement, the respondent was required to deliver back the timber launched at Dunali road side depot and the entire work of launching, floating, stacking and carriage was to be completed by 31st March, 1987. It is alleged that the respondent was delivered 33726 scants equivalent to 3546.644 cubic meters of different species and sizes, at the launching depots at Charola Nullah and Tunda Nullah, whereas, he had delivered back 34959 scants (including broken pieces) equivalent to 3113.203 cubic meters at Dunali road side depot. Thus, there was a short fall of 433.441 cubic meters in volume, which came out to the extent of 12.22% of the total timber entrusted to the respondent. It was further averred in the suit that as per the terms of the agreement, permissible loss during the course of floating and carriage was to the extent of 5%. The loss over and above was to be made good by the respondent-defendant at the rate of Rs. 2,500/-, Rs. 2,400/- and Rs. 2,100/- per cubic meter respectively, for deodar, kail and, Fir/spruce or at the market value, whichever was higher. Basing their claim on the aforesaid clause(s), the appellants deducted the permissible loss to the extent of 5% and the respondent-defendant was held liable to make good, the loss in respect of 7.22% of the timber, at the prevalent market rate, which was assessed at Rs. 8,50,297/-. Basing their claim on the aforesaid clause(s), the appellants deducted the permissible loss to the extent of 5% and the respondent-defendant was held liable to make good, the loss in respect of 7.22% of the timber, at the prevalent market rate, which was assessed at Rs. 8,50,297/-. On this amount, interest at the rate of 18% per annum was claimed with effect from 1st April, 1987 to 31st December, 1989. After adding a further sum of Rs. 220/- towards the cost of notice and adjusting Rs. 23,897/- balance payable to the respondent for the work done by him, the appellants in this way claimed a total sum of Rs. 12,48,460/- from the respondent-defendant. 3. The respondent-defendant contested and resisted the claim and in his written statement raised various preliminary objections, disputed the agreement being vague and further contended that he was only a mate for the supply of the labourers, and further that only estimated number of scants were required to be floated in the Ghal and he was not handed over the exact number of timber. According to him, the appellants could have invoked Clause 4 of the agreement to impose fine of Rs. 1,000 for the negligence, if any, and further that work was being done under the supervision of the appellants and also raised the point of limitation. On merits, it was contended that the loss of the timber, if any, was not on account of his negligence but was attributable to the natural calamities. Thus, prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned Single Judge framed the following issues: 1. Whether the suit is within limitation?....OPP 2. Whether only an estimated number of scants, and not the exact number, were put in ghal for floating by the defendant as alleged? If so, its effect?....OPD 3. Whether the defendant was a mate and his job was only to supply labour and he was not liable for any loss of timer as alleged? If so, its effect?....OPD 4. Whether there was no valid agreement between the parties?....OPD 5. To what amount the plaintiffs are entitled to recover from the defendant?....OPP 5-A. Whether the loss of timber was due to flood and other natural calamity, as alleged, if so, to what effect?....OPD 6. Relief. 5. If so, its effect?....OPD 4. Whether there was no valid agreement between the parties?....OPD 5. To what amount the plaintiffs are entitled to recover from the defendant?....OPP 5-A. Whether the loss of timber was due to flood and other natural calamity, as alleged, if so, to what effect?....OPD 6. Relief. 5. After, hearing the parties and going through the records, the learned Single Judge returned the findings on each and every issue and held that the volume of the timber, handed over to the respondent, at the time of launching, was never measured in the presence of the respondent and no measurement was carried out at Dunali depot while delivering the timber back to the plaintiffs. Thus, in the absence of such evidence it could not be said that if there had been any short-fall in the timber. Assuming if there was any, it was attributable to the natural calamity. Thus, issues No. 2 and 5 and 5(a) were decided in favour of the respondent. Consequent upon these findings, the suit of the plaintiffs was dismissed with costs, quantified at Rs. 5,000/-. 6. Feeling aggrieved and dis-satisfied by the impugned judgment and decree, passed by the learned Single Judge, the appellants filed the instant appeal on the grounds, that the learned Single Judge did not appreciate the evidence on record in its right perspective and the findings were based on conjectures and surmises, thus the impugned judgment and decree suffer from material illegalities and irregularities and that the suit was within the period of limitation, therefore, findings to the contrary are liable to be set aside and prayed for acceptance of the appeal. 7. We have heard the learned Counsel for the parties at length and have carefully gone through the evidence on record. 8. It is forcefully argued by Sh. Neel Kamal Sood, learned Counsel for the appellants that the agreement executed inter se the parties stands proved and the appellants have been able to prove the delivery of 33726 scants, which, was equivalent to 3546.644 cubic meters, to the respondent at launching depot, from which place the respondent was supposed to transport the timber through river/khud. The terms and conditions of the agreement were unambiguous and absolutely clear, only a permissible loss to the tune of 5% of the total volume, during floating and carriage was not recoverable. The terms and conditions of the agreement were unambiguous and absolutely clear, only a permissible loss to the tune of 5% of the total volume, during floating and carriage was not recoverable. The learned Counsel has taken pains to take us through every bit of the evidence on record and concluded that the findings, recorded by the learned Single Judge, are contrary to the evidence on record. Hence, prayed for acceptance of the appeal. 9. Contra, Sh. R.K. Sharma, learned Counsel for the respondent very forcefully argued that there was neither any illegality in appreciation of the evidence nor there was any error in appreciating the law, therefore, the conclusions arrived at were correct, while supporting the impugned judgment and decree of the learned Single Judge, prayed for dismissal of the appeal. 10. We have given our thoughtful consideration to the rival contentions and have re-appraised the evidence on record, reference of which shall be given at the relevant stages. 11. As a matter of fact, the appellant-plaintiffs examined D.S, Saini (PW-1), Prahalad Singh (PW-3), P.L. Thakur (PW-4) and gave up Dev Raj PW but in rebuttal examined Sh. S.K. Sharma (PW-5). On the other hand the respondent-defendant has examined himself as DW-1 and produced DWs Ram Singh and Chhangru Ram in support of his case. 12. The learned Single Judge, while appreciating the evidence on record, found the agreement Ex. PW-1/3, as legal and valid document and decided issue No. 4 in favour of the appellants. Against these findings, there is no agitation by the respondent before us, therefore, the findings on issue No. 4 is considered to be final and the agreement aforesaid is held to be valid. As far as Issues No. 2 and 5 (a) are concerned, it deals with the question whether the respondent-defendant was entrusted with the estimated or exact number of scants as alleged by the appellants and whether the appellants are entitled for the recovery of any amount from the respondent-defendant for the alleged short fall, in terms of the agreement. The learned Single Judge on both these issues, being co-related and connected, after discussing the evidence gave the findings against the appellants consequently, held the plaintiffs not entitled for any amount, in answer to issue No. 5 which inter alia have been assailed in this appeal alongwith the findings returned against them qua issue No. 1 regarding limitation. 13. The learned Single Judge on both these issues, being co-related and connected, after discussing the evidence gave the findings against the appellants consequently, held the plaintiffs not entitled for any amount, in answer to issue No. 5 which inter alia have been assailed in this appeal alongwith the findings returned against them qua issue No. 1 regarding limitation. 13. As already referred above, the case of the respondent-defendant was that only estimated number of scants were agreed to be floated and whatever scants were handed over to him, were delivered back by him at Duanli to the appellants, and if there was any short fall it was attributable to the natural calamities like floods or snow. In order to appreciate this point, tender notice Ex. PW-1/1 is required to be seen, it only says that the approximate number of the timber was to be floated. This fact stands corroborated by the agreement Ex. PW-1/3 inter-se the parties which also mentions the estimated value of the work. In the agreement, against the column, work undertaken for khad-floating, is left blank. Further Sh. P.L. Thakur (PW-4) states that the respondent-defendant was handed over 33726 scants equivalent to 3546.644 cubic meter for khad floating but in the cross-examination he has stated that he was not posted in Chamba Forest Corporation Division, when the Ghal started functioning. Therefore, he could not tell how many scants were floated by the respondent and did not have any personal knowledge to that effect. It is also pertinent to note that the respondent had denied the receipt Ex. PW-2/A regarding handing over 33726 scants to him, at the time of admission and denial of the documents he only admitted his signatures as DW-1. This receipt was exhibited in the statement of PW-3 but he did not state whether he was the scribe or a witness to the said receipt and whether the respondent knew the contents of this document while appending his signatures. Thus the genuineness and correctness of the document has to be proved by the plaintiffs by leading a cogent and direct evidence. (Please See Ashokkumar Uttamchand Shah Vs. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108 ). All these questions have to be answered properly by the person(s) who asserts it, and answered on record. Thus the genuineness and correctness of the document has to be proved by the plaintiffs by leading a cogent and direct evidence. (Please See Ashokkumar Uttamchand Shah Vs. Patel Mohmad Asmal Chanchad, AIR 1999 Guj 108 ). All these questions have to be answered properly by the person(s) who asserts it, and answered on record. Mere marking of the document as an exhibit does not dispense with its proof, as held in Sait Tarajee Khimchand and Others Vs. Yelamarti Satyam alias Satteyya and Others, (1972) 4 SCC 562 , even admission of the signatures without putting its contents to the respondent also do not prove the contents thereof. 14. Keeping in view, the aforesaid evidence, we can not believe execution of the receipt (Ex. PW-2/A) regarding handing over 33726 scants to the respondent as alleged. For the arguments sake, if we hold this document as having been proved, even then the appellants have failed to prove that they were handed over less quantity of timber than handed over to the respondent. The number of the scants delivered back by the respondent to the appellants at the road side depot at Dunali were admittedly more than the number of scants, alleged to have been delivered to the respondent-defendant at the launching points. According to PW-3 Parhalad Singh, the timber was never measured in his presence at Dunali depot, at the time of its back delivery. There is no document to show that any measurement was ever carried out even at Dunali Depot. Had there been any it should have been placed on record. Even the documents i.e. Ghal Account Ex. PW-4/A and the list Ex. PW-2/B final bill did not contain any date nor these documents have been prepared in the presence of the respondent. Thus we are at a loss to hold that there was any shortfall while handing over the timber back by the respondent. Further it is also evident from the record that there have been floods in the river when the work was under execution by the respondent. PW-3 Parhalad Singh has admitted this fact in his cross-examination in very clear and unambiguous words. Further it is also evident from the record that there have been floods in the river when the work was under execution by the respondent. PW-3 Parhalad Singh has admitted this fact in his cross-examination in very clear and unambiguous words. Even he had gone to the extent of saying that the timber was stacked at a proper place on the bank of the river and during the course of site inspection by the Sub Divisional Manager (SDM) it was directed to shift it to a safer place as it had come under water and also stated that no payment, for shifting of the timber, was made to the respondent-defendant. He has admitted that about 3500 scants timber had flown out of the boom, on account of flood, which was the responsibility of the Department to retrieve it. This fact is corroborated by the report Ex.PW-1/4. Even D.S. Saini (PW-1) has also offered the corroboration to this fact. The agreement aforesaid also do not hold the respondent liable for the timber washed away in flood. Therefore, on the strength of the above evidence it is very difficult for us to hold that there was any short fall and if there was any it was attributable to the natural calamities. 15. On the re-appraisal of the evidence, law and fact as discussed above, we affirm the issue wise findings and reason arrived at by the learned single judge, since we did not find anything worth interference in favour of the appellants for setting aside the judgment and decree, accordingly the appeal is dismissed with costs throughout.