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2008 DIGILAW 716 (GAU)

Union of India v. Lalthanmawia

2008-09-19

H.BARUAH

body2008
JUDGMENT H. Baruah, J. 1. The judgment and order dated 31.5.2006 passed by the learned Additional District Magistrate (J) Aizawl in RFA 6/2002 is the subject-matter of challenge. 2. For the purpose of disposal of this second appeal this Court, after going into the materials available on record and the submissions advanced by either party, the following substantial questions of law have been formulated: (1) Whether the Commander, Hqrs., 24 BRTF is competent to represent the Union of India in absence of any general or special order, appointing him in this behalf as per the provision of Order 27, Rule 1, Code of Civil Procedure. (2) Whether the learned lower courts are right in dismissing the counter claim of the Defendant No. 1/Cross-Objector in spite of the Appellant making no reply to the counter claim as per the provision of Order 8, Rule 6E, Code of Civil Procedure; and (3) Whether members of the general public has a liability to pay compensation to the Government for any damage or destruction caused by negligent and/or reckless act on their part to public property constructed and maintained by the Government. 3. For the purpose of the decision of the above three substantial questions of law as formulated above, it would be appropriate for this Court to project the facts of the Civil Suit No. 1/94 which was disposed of by the learned Assistant to the Deputy Commissioner, Aizawl. 4. The Appellant, herein, Union of India, represented by Commander, Hqrs., 24 BRTF C/o 99 APO, Zemabawk, Aizawl constructed a Triple Single Bailey Bridge at KM 81 on Aizawl - Tuipuibari road over river Dhaleshawari in the year 1970 and was opened for public use, which has been used as the life line for all the villages nearby. The bridge was constructed at a load capacity of only 18 tons and only one vehicle at a time from either direction was allowed to cross the bridge and for that, caution boards on both ends of the bridge was put cautioning the drivers/users of the bridge to cross the bridge only with one vehicle at a time. The Appellant was maintaining the bridge but on 6.2.1993, the bridge collapsed due to reckless use of the same by Respondent Nos. 2 and 3. The bridge collapsed as a result of driving of two vehicles at a time while crossing the bridge. 5. The Appellant was maintaining the bridge but on 6.2.1993, the bridge collapsed due to reckless use of the same by Respondent Nos. 2 and 3. The bridge collapsed as a result of driving of two vehicles at a time while crossing the bridge. 5. For the repair and maintenance, thereafter, the Appellant had to expend an extra amount of Rs. 51,23,000 and for realization of the said amount, the Appellant filed a Civil Suit being C.S. 1/1994 against the Respondents with interest at the rate of 15% p.a. Respondents contested the claim by filing written statement and also put a counter claim for Rs. 11,59,000 with interest at the rate of 16% p.a. for damages of the two trucks which fell into the river and also for the loss caused to other four trucks which allegedly stranded on either side of the collapsed bridge. 6. Issues were framed on the pleadings of both the parties and after due trial, the suit was dismissed alongwith the counter claim. Being aggrieved thereby RFA No. 16/2002 was filed/preferred before the court of the learned ADM(J) Aizawl wherein the Appellant filed cross objection against the appeal filed by the Respondents. The learned lower appellate court dismissed both the appeal and the cross objection and upheld the judgment and decree dated 7.8.2002 vide judgment and order dated 31.5.2006. Now, being aggrieved by the judgment and order dated 31.5.2006, this second appeal has been preferred by the Union of India. 7. We heard Mr. S.N. Meitei, learned Counsel for the Appellant as well as Mr. A.R. Malhotra, learned Counsel for the Respondent No. 1 at length in the matter of the substantial questions of law so formulated. 8. Mr. S.N. Meitei, learned Counsel for the Appellant at the very outset argued that substantial question Nos. 1 and 2 so formulated are not substantial question of law since both the questions involved facts. In second appeal, facts involved in the suit and the appeal cannot be the subject-matter of discussion or in other words, appreciation and scrutinization by the court is barred, only, pure question of law are required to be formulated, discuss and disposed of. Now, let us see whether both questions can be branded as substantial question of law or not. The suit was instituted by the Union of India, represented by Commander Hqrs., 24 BRTF C/o 99 APO, Zemabawk, Aizawl against the Respondents. Now, let us see whether both questions can be branded as substantial question of law or not. The suit was instituted by the Union of India, represented by Commander Hqrs., 24 BRTF C/o 99 APO, Zemabawk, Aizawl against the Respondents. In that view of the matter, it is to be decided whether the Commander Hqrs., 24 BRTF had the authority to institute the suit against the Respondents. Order 27, Rule 1 of the Code of Civil Procedure deals with the subject "Suits by or against Government" while Rule 2 speaks for "Persons authorized to act for Government". Ordinarily in any suit by or against the Government, the plaint or written statement shall be signed by such person as the Government may, by general or special order, appoint in this behalf, and shall be verified by any person whom the Government may so appoint and who is acquainted with the facts of the case. Therefore, for the purpose of filing a suit or for defending a suit by or against the Government, person or persons may be appointed by the Government by general or special order. Rule 2 says that persons being ex-officio or otherwise authorized to act for the Government in respect of any judicial proceeding shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of the Government. Mr. S.N. Meitei, learned Counsel for the Appellant submitted that the Commander Hqrs., 24 BRTF is an ex-officio officer of the Union and therefore, he is authorized to institute a suit for and on behalf of the Union of India. In view of the Rules (Rules 1 and 2) of Order27 Mr. A.R. Malhotra, learned Counsel for the Respondent raised no stiff objection that Commander Hqrs., 24 BRTF Zemabawk has no jurisdiction to institute the suit against the Respondents. From the record, admittedly, we have not come across any general or special order appointing the Commander Hqrs., 24 BRTF to institute the suit against the Respondents but admittedly, he is an ex-officio officer of the Union of India, therefore, the question No. 1 can be answered in favour of the Appellant, Union of India. 9. From the record, admittedly, we have not come across any general or special order appointing the Commander Hqrs., 24 BRTF to institute the suit against the Respondents but admittedly, he is an ex-officio officer of the Union of India, therefore, the question No. 1 can be answered in favour of the Appellant, Union of India. 9. The second substantial question whether the earned lower courts are right in dismissing the counter claim of the Defendant No. 1/cross object or in spite of the Appellant making no reply to the counter claim as per provisions of Order 8, Rule 6E of Code of Civil Procedure. It was argued by Mr. S.N. Meitei that nothing illegality had been committed by the trial court and the appellate court in dismissing the counter claim as set up by the Defendants-Respondents herein since the court is adorned with a discretionary power in respect of the counter claim so made. Two options are available for the Court when no reply is put to the counter claim (i) either to pronounce the judgment against the Plaintiff in relation to the counter claim or (ii) makes such order in relation to the counter claim as it think fit. Mr. S.N. Meitei, in support of his contention relied in a decision in the case between Balraj Taneja and Anr. v. Sunit Madan and Anr., AIR 1999 SC 3381 . In Paragraphs 28 and 29 of the judgment the Hon'ble Supreme Court held as under: Having regard to the provisions of Order 12, Rule 6; Order 5, Rule 8, specially proviso thereto; as also Section 58 of the Evidence Act, the court has not to act blindly upon the admission of a fact made by the Defendant in his Written Statement nor the court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the Defendant traversing the facts set out by the Plaintiff in the plaint filed in the court. In a case, specially where a Written Statement has not been filed by the Defendant, the court should be a little cautious in proceeding under Order 8, Rule 10, Code of Civil Procedure. In a case, specially where a Written Statement has not been filed by the Defendant, the court should be a little cautious in proceeding under Order 8, Rule 10, Code of Civil Procedure. Before passing the judgment against the Defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the Plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the Defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court of pass a judgment without requiring the Plaintiff to prove the facts so as to settle the factual controversy. Such a would be covered by the expression "the court may, in its discretion, require any such fact to be proved" used in Sub-rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order 8 [Paras 28 and 29]. 10. Rule 6A of Order 8 speaks of counter claim by the Defendant while Sub-rules 2, 3 and 4 speaks of the character of the counter claim, filing of written statement and rules governing the plaint. When a counter claim is set-up, it shall have the same effect as a cross-suit and the Plaintiff shall be at liberty to file written statement in answer to the counter claim of the Defendant within a period fixed by the court. Therefore, while dealing with the provisions of Rule 6E in respect of a counter claim, provisions of Rule 10 is required to be read together. The Hon'ble Supreme Court in the judgment (supra) held that where a written statement has not been filed by the Defendant, the court should be a little cautious in proceeding under Order 8, Rule 10 of the Code of Civil Procedure. The Hon'ble Supreme Court in the judgment (supra) held that where a written statement has not been filed by the Defendant, the court should be a little cautious in proceeding under Order 8, Rule 10 of the Code of Civil Procedure. Before passing the judgment against the Defendant, it must see that the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the Plaintiff. When filing a counter claim by the Defendant, the counter claim turns to be a plaint while, the reply submitted by the Plaintiff can be treated as written statement. In respect of a suit where counter claim is made by the Defendant, the same rule is applicable as in case of the suit in respect of the counter claim also. So discretion has given to the court either to pronounce the judgment immediately for non-submission of the reply to the counter claim or to pass an appropriate order in view of non-submission of the reply considering the facts pleaded etc. The learned trial court, while dealing with the counter claim did not find it fit to pronounce the judgment against the Plaintiff, the Appellant herein forthwith for non-submission of the reply. 11. The argument put forward by Mr. A.R. Malhotra that since the Appellant, the Union of India defaulted in filing the reply to the counter claim it would have been appropriate for the trial court to pronounce the judgment against the Appellant since the Appellant violated the provision of Rule 6E of Order 8, Code of Civil Procedure. But the Hon'ble Supreme Court, while dealing with the case reported in AIR 1999 SC 3381 put restriction in immediate pronouncement of the judgment against the Defendant for non-submission of the written statement. This court finds no force in view of the decision rendered by the Hon'ble Supreme Court in the case between Balraj Taneja and Anr. (supra). No error or illegality had been committed either by the trial court or the appellate court in dismissing the counter claim of the Defendants-Respondents herein. 12. In the context of substantial question No. 3, it was argued by Mr. S.N. Meitei that general public has a liability to pay compensation to the Government for any damage or destruction caused by negligent or reckless act on their part to the public property. It was argued by Mr. 12. In the context of substantial question No. 3, it was argued by Mr. S.N. Meitei that general public has a liability to pay compensation to the Government for any damage or destruction caused by negligent or reckless act on their part to the public property. It was argued by Mr. S.N. Meitei that the collapsed Bailey bridge over river Dhaleshawari was constructed by the BRTF for benefit of the public but the said Bailey Bridge collapsed as' a result of passing of two loaded vehicles at a time denying the caution fixed at both ends of the said bridge. The defendants tried to cross both the loaded trucks at a time which was not permissible but tried to cross the loaded trucks negligently and recklessly without obeying the caution fixed at both ends of the bridge. For destruction of the Bailey Bridge in the manner by the Defendants-Respondents herein, the Plaintiff-Appellant herein had to expend a considerable amount of money for reconstruction/repair of the bridge when the bridge had collapsed due to negligent and reckless act of the Defendants, the expenditure incurred by the Plaintiff-Appellant herein can be recovered from the Defendants. Mr. S.N. Meitei m support of his argument relied in a decision in the case between M.C. Mehta v. Kamal Nath and Ors. AIR 2000 SC 1997 , in Paragraph 20 of the judgment the Hon'ble Supreme Court held as under: 20. The scope of Article 142 was considered in several decisions and recently in Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895 : (1998) 4 SCC 409 : AIR 1998 SCW 1706 by which the decision of this Court in V.C. Mishra, In re., (1995) 2 SCC 584 was partly overruled, it was held that the plenary power of this Court under Article 142 of the Constitution are inherent in the court and are "COMPLEMENTARY" to those powers which are specifically conferred on the court by various statutes. This power exists as a separate and independent basis of jurisdiction apart from the statutes. The court further observed that though the powers conferred on the court by Article 142 are curative in nature, they cannot be construed as powers which authorize the court to ignore the substantive rights of a litigant. This power exists as a separate and independent basis of jurisdiction apart from the statutes. The court further observed that though the powers conferred on the court by Article 142 are curative in nature, they cannot be construed as powers which authorize the court to ignore the substantive rights of a litigant. The court further observed that this power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the court. Article 142 even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. 13. In this appeal, it was argued by Mr. S.N. Meitei that the Defendants by their negligent and reckless acts caused the damage of the Bailey Bridge over Dhaleshawari constructed and maintained by the Appellant is a civil wrong against the general public and therefore, the Appellant is entitled to compensation as may be proved through evidence both oral and documentary. The principle adopted by the Hon'ble Supreme Court in the case (supra) to the humble view of this Court can also be applied since the Defendants-Respondents herein caused a civil wrong to the general public by damaging the Bailey Bridge by their negligent act. Mr. A.R. Malhotra, learned Counsel for the Respondent, however, refused application of the principle laid down by the Hon'ble Supreme Court in the case (supra) in this present case. He put emphasis that the Appellant in view of the facts and evidence on record is not entitled to compensation, no error or illegality has been committed by the courts below, he argued. 14. I have given a conscious consideration of the judgments rendered by the courts below and also the submissions advanced by the learned Counsel of both parties together with the law laid down by the Hon'ble Supreme Court (referred). The issues framed are not properly discussed with reference to the facts and evidence rather settled in a mechanical and shallow manner. Likewise the first appellate court also failed to appreciate the issues in its proper perspective which cannot be an expectation of an appellate court. 15. During the course of argument it was brought to the notice of this Court by Mr. Likewise the first appellate court also failed to appreciate the issues in its proper perspective which cannot be an expectation of an appellate court. 15. During the course of argument it was brought to the notice of this Court by Mr. A.R. Malhotra that the claim made by the Appellant is exceptionally exaggerated and not based on evidence since no such amount had ever been expended by the Union (BRTF) in reconstruction/repairing of the vehicle. In the second appeal, of course, consideration of facts and evidence is beyond the scope of scrutiny and this Court opts not the discuss and scrutinize the same. 16. Having considered all the matter in its entirety this Court is of the opinion that neither of the judgments passed by the trial court and the appellate court should stand. Both the judgments are accordingly set aside and quashed. The matter is remanded back to the trial court for fresh disposal. Either party will be at liberty to adduce evidence both oral and documentary in support of their respective case. The matter shall be disposed of within a period of sic months from the date of receipt of the records from this Court. Parties are directed to appear before the trial court within 30 days and to obtain direction. 17. This appeal is accordingly disposed of, however, with no cost. 18. Registry is directed to send all records to the learned trial court with a copy of the judgment forthwith.