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2008 DIGILAW 439 (HP)

Kalawati v. State of H. P.

2008-08-28

R.B.MISRA, SURJIT SINGH

body2008
JUDGMENT Surjit Singh, J. 1. This appeal by Kalawati and others legal representatives of late Yash Pal Garg, and M/s. Yash Pal Garg & Company, is directed against the judgment and decree, dated 5th October, 2000, of learned Single Judge, whereby suit for recovery of certain amount of money, filed by late Yash Pal Garg and the aforesaid company, has been dismissed, on the grounds that the agreement, on the basis of which suit had been filed, was executed between Yash Pal Garg (in his individual capacity) and the State of Himachal Pradesh, through Conservator of Forests, but the suit had been filed in the name of M/s. Yash Pal Garg & Company and also on the ground that the same was bad and not maintainable, because notice, under Section 80 of the Code of Civil Procedure, that had been served before the institution of the suit was given to the defendants on behalf of M/s. Yash Pal Garg & Company and not by Yash Pal Garg, even though the agreement was signed by him in his individual capacity. 2. Relevant facts may be summed up thus. In the year 1980, a document was executed between late Yash Pal Garg and the State of Himachal Pradesh, whereby Yash Pal Garg (deceased plaintiff) was allowed to fell certain trees and to convert them into timber from a Government forest in Chopal forest division. The trees formed part of Lot No. 1/80-84. The period during which the trees were to be felled and converted into timber was 1980 to 1984. Yash Pal Garg completed the felling and conversion of trees within the aforesaid period. However, a criminal case was registered against M/s. Yash Pal Garg & Company, through its partner Yash Pal Garg, on the allegation that he had done some illicit felling while felling the marked trees in the aforesaid Lot No. 1/80-84. Timber extracted by Yash Pal Garg, pursuant to the aforesaid agreement, was seized. Lateron, it was auctioned under the orders of Special Judge (Forest), Shimla. Plaintiff claimed that he sustained losses in the form of payment of interest to banks and retention of security money, etc. Notice was served upon the defendants, under Section 80 of the Code of Civil Procedure, in the name of M/s. Yash Pal Garg & Company, through Advocate. Lateron, it was auctioned under the orders of Special Judge (Forest), Shimla. Plaintiff claimed that he sustained losses in the form of payment of interest to banks and retention of security money, etc. Notice was served upon the defendants, under Section 80 of the Code of Civil Procedure, in the name of M/s. Yash Pal Garg & Company, through Advocate. Thereafter, suit was filed, both in the name of Yash Pal Garg and M/s. Yash Pal Garg & Company. 3. In the plaint, it was alleged that the agreement was between M/s. Yash Pal Garg & Company and the State of Himachal Pradesh and, therefore, the suit was being filed in the name of the aforesaid company. Defendant not only did not deny this averment made in the plaint but admitted the same to be correct. On merits, the claim was denied. 4. The learned Single Judge framed the following issues on the pleadings of the parties: 1. Whether the suit is properly valued for the purposes of Court-fee and jurisdiction? OPP 2. Whether the plaintiff is estopped from filing the present suit by his acts and conduct? If so its effect? OPD 3. Whether the demands, or any part thereof, raised by the Forest Department against the plaintiff amounting to Rs. 4,58,858.72P, Rs. 3,50,000/- and Rs. 68,718.00P are valid and legally tenable? OPD 4. Whether the plaintiff is entitled to recover Rs. 10,62,396.28P from the defendants as interest paid by him to Central Bank of India, Yamunanagar as alleged? OPD (Note: The plea raised by the plaintiff that the timber was illegally and mala fide seized by the defendants would be covered by the above issue). 5. Relief. Thereafter, parties led evidence. During the course of final hearing, State of Himachal Pradesh raised the following contentions: (i) The lot was auctioned in favour of Shri Yash Pal Garg in his individual capacity. The agreement Ex. 5. Relief. Thereafter, parties led evidence. During the course of final hearing, State of Himachal Pradesh raised the following contentions: (i) The lot was auctioned in favour of Shri Yash Pal Garg in his individual capacity. The agreement Ex. PW-7/3 has been entered into by the said Shri Yash Pal Garg in his individual capacity, the present suit by the partnership firm (Plaintiff No. 2) and by Shri Yash Paul Garg (plaintiff No. 1) in his capacity as a partner of plaintiff No. 2 firm, is not maintainable and competent; (ii) Alternatively, if the present suit, insofar as plaintiff No. 1 is concerned, is held to have been filed in his individual capacity, the same is bad and not maintainable in the absence of notice under Section 80, Code of Civil Procedure. Learned Single Judge accepted both the contentions, as already noticed, and dismissed the suit. 5. Appellants are aggrieved by the judgment and decree of the learned Single Judge. The main contention raised on behalf of the appellants, by their Counsel, is that when the defendant had admitted, in the written statement, that the lease agreement was executed in favour of M/s. Yash Pal Garg & Company and not only this the defendant had not even claimed an issue that the suit was not maintainable and competent, on account of having been filed in the name of a company, though the agreement was with Yash Pal Garg in his individual capacity, learned Single Judge ought not to have even considered these contentions of the defendant, leave alone accepting them. 6. We have been taken through the pleadings of the parties and certain other documents. A reading of the written statement clearly suggests that not only did the State of Himachal Pradesh not raise any objection about the maintainability and the competence of the suit, but in fact it very categorically admitted, in para-1 of the written statement itself, that the agreement was between the State of Himachal Pradesh and M/s. Yash Pal Garg & Company. Also, no issue was claimed with regard to the aforesaid two contentions, raised during arguments, when the issues were framed. Admittedly, a notice was served upon the State of Himachal Pradesh, before the filing of the suit. Also, no issue was claimed with regard to the aforesaid two contentions, raised during arguments, when the issues were framed. Admittedly, a notice was served upon the State of Himachal Pradesh, before the filing of the suit. The notice was served in the name of M/s. Yash Pal Garg & Company, even though the agreement, which is on record, was executed by Yash Pal Garg in his individual capacity. Evidence led by the plaintiff, particularly the statement of PW-9, was to the effect that the agreement was between the State of Himachal Pradesh (defendant) and M/s. Yash Pal Garg and Company. Defendants did not raise any dispute during trial nor did they lead any evidence to controvert the statement of PW-9. Also, some documents were proved on record, indicating that State of Himachal Pradesh (defendant) had been treating the agreement to be between it and M/s. Yash Pal Garg & Company. 7. Learned Single Judge, without taking into account the abovestated factual position and the evidence on record, accepted the contention of respondent/defendant-State of Himachal Pradesh that the suit had been filed in the name of a firm, even though the agreement made by it, was with an individual, namely Yash Pal Garg. 8. As a matter of fact, as already noticed, the suit was filed, both in the name of M/s. Yash Pal Garg & Company, which was plaintiff No. 2, and Yash Pal Garg, in his individual capacity. Now, when Yash Pal Garg had sued as a co-plaintiff, in his individual capacity, and after his death his legal representatives were also brought on record, on account of their having inherited the individual estate of Yash Pal Garg, the suit could not have been said to be incompetent and not maintainable, on the ground that M/s. Yash Pal Garg & Company was impleaded as a co-plaintiff. At the most, it could have been said to be a case of mis-joinder of parties. Such an objection having not been raised at or before the settlement of issues, could not have been allowed to be raised subsequently, in view of the provision of Rule 13 of Order 1 of the Code of Civil Procedure. At the most, it could have been said to be a case of mis-joinder of parties. Such an objection having not been raised at or before the settlement of issues, could not have been allowed to be raised subsequently, in view of the provision of Rule 13 of Order 1 of the Code of Civil Procedure. Also, the learned Single Judge, in exercise of his powers, under Order 1 Rule 10(2) of the Code of Civil Procedure, could have ordered the striking out of the name of M/s. Yash Pal Garg & Company, if it was felt that the same was not a necessary party. 9. View taken by the learned Single Judge with regard to the contention regarding notice, under Section 80 of the Code of Civil Procedure, is too pedantic. Admittedly, a notice, under Section 80 of the Code of Civil Procedure, was served upon the State of Himachal Pradesh, before institution of the suit. The only defect in the notice was that it was served in the name of M/s. Yash Pal Garg & Company instead of in the name of Yash Pal Garg, in his individual capacity. Of course, the lease agreement was executed between Yash Pal Garg, in his individual capacity, and the State of Himachal Pradesh and the notice was required to be served by Yash Pal Garg in his individual capacity. But, as already noticed, during operation of the agreement as also after the expiry of the time for working the Lot leased out to Yash Pal Garg, an impression was created, on account of some correspondence between the Police Department and Forest Department, as also some progress reports made by the field staff of Forest Department to the higher authorities during felling operation that the lease was in favour of M/s. Yash Pal Garg & Company and it appears that because of this impression, not only in the plaint it was stated that the agreement was between M/s. Yash Pal Garg & Company and the State of Himachal Pradesh, but in the written statement also the same plea was taken. Now, if both the sides were under the impression that the lease was executed between M/s. Yash Pal Garg & Company and the State of Himachal Pradesh, notice, under Section 80 of the Code of Civil Procedure, issued in the name of M/s. Yash Pal Garg & Company, even though technically defective, could not have been held to be so, because otherwise the notice complied with all the requirements of Section 80 of the Code of Civil Procedure. 10. Hon'ble Supreme Court in Ghanshyam Dass and Ors. v. Dominion of India and Ors. [1984] 3 SCR 229 , has held as follows: 11. In the ultimate analysis, the question as to whether a notice under Section 80 of the Code is valid or not is a question of judicial construction. The Privy Council and this Court have applied the rule of strict compliance in dealing with the question of identity of the person who issues the notice with the person who brings the suit. This Court has however adopted the rule of substantial compliance in dealing with the requirement that there must be identity between the cause of action and the reliefs claimed in the noticed as well as in the plaint. As already stated, the Court has held that notice under this Section should be held to be sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to be filed. On this principle, it has been held that though the terms of the Section have to be strictly complied with, that does not mean that the notice should be scrutinized in a pedantic manner divorced from common sense. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation. 11. The point to be considered is whether the notice gives sufficient information as to the nature of the claim such as would enable the recipient to avert the litigation. 11. In view of the above referred to precedent of the Hon'ble Supreme Court, we are of the considered view that requirement of Section 80 of the Code of Civil Procedure having been substantially complied with in the present case, contention raised by the State of Himachal Pradesh, for the first time, during final hearing of the matter, that the suit was bad for want of notice, under Section 80 of the Code of Civil Procedure, by Yash Pal Garg, in his individual capacity, was without merit and ought not to have been accepted by the learned Single Judge. In any case, such an objection having not been raised in the written statement and instead an admission having been made in the written statement that the lease agreement was entered into by the State of Himachal Pradesh with M/s. Yash Pal Garg & Company, requirement of service of notice, under Section 80 of the Code of Civil Procedure by Yash Pal Garg in his personal capacity, can legitimately be said to have been waived. 12. As a result of the abovestated position, we allow this appeal, set aside the judgment and decree of the learned Single Judge and remand the case with a direction that the matter be decided afresh on merits after recording findings on the issues, which were framed by the learned Single Judge. Appeal stands disposed of.