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2017 DIGILAW 2692 (RAJ)

State of Rajasthan v. Jaimal Singh Kishan Singh

2017-12-05

DINESH MEHTA

body2017
JUDGMENT : Dinesh Mehta, J. 1. The present appeal has been preferred by the State under Section 96 of the Code of Civil Procedure against the judgment and decree, dated 27.11.1989 passed by the learned Additional District Judge, Bikaner (hereinafter referred to as 'the Trial Court'). The facts in brief are that the respondent - plaintiff had filed a suit for recovery of a sum of Rs. 26,000/- against the defendants -appellant, inter alia contending that the defendants have not made payment of security money of Rs. 17,658/- as mentioned in para No. 10 of the plaint and less payment of Rs. 494.78 & 7195/- as stated in para No. 11 of the plaint. It was stated that final bill dated 31.07.1972 and 01.03.1972 was prepared by the defendant for the said amounts of; Rs. 494.78/- and 7,195/-, but the same has not been paid. Pursuant to the suit aforesaid filed by the plaintiff, the appellant - defendants submitted a written statement and denied the contents of the plaint, while also lodging counter claim for recovery of a sum of Rs. 26,446.13/-. The defendants, though had admitted para Nos. 1 to 5 of the plaint so also the factum of preparation of final bills as stated in para Nos. 8 and 9 of the plaint, however disputed the plaintiff's right of recovery of the amount in question on the ground of limitation. The defendants had also prayed for recovery of the amount of income tax and sales tax along with interest @ 12%. 2. On the basis of the pleadings of the parties, the learned Trial Court had framed twelve issues on 17.07.1978. 3. On behalf of the plaintiff, Sarwan Singh PW-1, Kishan Singh PW-2 appeared in the witness box; whereas Bishamber Singh DW-1, Mohan Lal DW-2, Hari Singh DW-3 and Mohan Lal S/o. Munshi Lal DW-4 appeared on behalf of the defendants. In rebuttal evidence, Kishan Singh again appeared in witness box. 4. Both the parties have tendered various documentary evidence out of which a specific reference of Ex.-1 notice, receipts Ex.-2 and 3, Registration Certificate issued by the Registrar Firm Ex.-5 would be relevant, whereas defendants had exhibited agreement No. 39 as Ex. A-1, Agreement No. 57 as Ex. A-2, final bill in relation to agreement No. 57 being Ex. A-3, copy of measurement book Ex. A-4 letter Ex. A-1, Agreement No. 57 as Ex. A-2, final bill in relation to agreement No. 57 being Ex. A-3, copy of measurement book Ex. A-4 letter Ex. A-5 and A-7 and final bill in relation to agreement 39 being Ex. A-8, measurement book 6-A etc. After appreciating the documentary and oral evidence available on record, learned Trial Court decided issue No. 1 in favour of the plaintiff which related to registration of the firm, which is not of much relevance for the purpose of present appeal. 5. While deciding issue No. 2 learned Trial Court has recorded a finding that the contents of para No. 10 of the plaint wherein the plaintiff had stated that final bill with respect to contract Nos. 39 and 57 were prepared but have not been paid are proved, particularly in view of the admission by the defendants' own witness, namely Hari Singh, Superintendent Engineer (DW-3). As far as amount claimed in para Nos. 11 and 12 are concerned, the Trial Court has held that the plaintiff has failed to prove the same. 6. In view of the above, the learned Trial Court has held the plaintiff entitled to a sum of Rs. 17658/- from the defendants. 7. Issue No. 3 had been decided against the plaintiff as he had failed to prove his entitlement of interest @ 12% on the due amount. Issue Nos. 4 and 5 related to the notice under Section 80 of the Code of Civil Procedure and on the issue of limitation respectively, which came to be decided in favour of the plaintiff. 8. Issues Nos. 6 and 7 were technical in nature and the same have also been found in favour of the plaintiff. 9. Issue No. 8 which concerns the appellant the most, was in relation to the recovery of a sum of Rs. 26,446.13/-, which was sought to be recovered vide counter-claim lodged by the appellant. The said issue has been decided by the Trial Court against the defendants resulting in rejection of their counter claim amounting to Rs. 26,446.13. The issue No. 9 dealt with recovery of interest @ 12% thereof, which issue has been decided against the defendants, as they had failed to get issue No. 8 decided in their favour. 10. The said issue has been decided by the Trial Court against the defendants resulting in rejection of their counter claim amounting to Rs. 26,446.13. The issue No. 9 dealt with recovery of interest @ 12% thereof, which issue has been decided against the defendants, as they had failed to get issue No. 8 decided in their favour. 10. Issue No. 10, which dealt with the fact as to whether any material was in custody of the plaintiff or not has been held in favour of the plaintiff and the Trial court has held that material and goods remained in custody of defendants and not in possession/custody of the plaintiff. 11. Issue No. 11 dealt with the other relevant point raised by the plaintiff that the delay in execution of work was on account of the defendants' conduct, who had not supplied the tiles in time for which the contract could not be completed in time. The said issue has also been decided in favour of the plaintiff and it has been held, on the basis of the documentary evidence that the defendants failed to supply the requisite tiles in time, for which execution of the contract got delayed. 12. Having recorded such findings, the Trial Court decreed the suit of the plaintiff for a sum of Rs. 17658/-, while rejecting the counter claim filed by the defendant - appellant. 13. Finding fault with the aforesaid judgment and decree, dated 27.11.1989, Mr. Rajpurohit, learned counsel for the appellant submitted that the Trial Court has erred in decreeing the suit for the aforesaid sum of Rs. 17,658/- while rejecting their counter claim of Rs. 26,446.13. 14. He submitted that learned Trial Court has erred in rejecting defendants' counterclaim and holding that the agreements in question, being agreement Nos. 39 and 57 were not properly signed and in place of the word 'Governor', cutting has been made to make it 'Government', for which reason the agreement cannot be said to have been executed properly. 15. Mr. Rajpurohit, with surprise submitted that though the learned Trial court has rejected petitioners' counter-claim, holding the agreements not to have been validly executed, the very same agreements have been held valid, qua the plaintiff for which their suit for a sum of Rs. 17658/- had been decreed. 16. 15. Mr. Rajpurohit, with surprise submitted that though the learned Trial court has rejected petitioners' counter-claim, holding the agreements not to have been validly executed, the very same agreements have been held valid, qua the plaintiff for which their suit for a sum of Rs. 17658/- had been decreed. 16. Learned counsel for the appellant - State vehemently argued that the Trial Court has seriously erred in giving credence to the fact that Veer Singh, who had signed the written statement and counter-claim had not come in the witness box, so as to completely non-suit the defendants. 17. Mr. Rajpurohit's contention has been that in terms of Order XXVII, Rule 1 of the Code of Civil Procedure, the State Government can authorize any officer on its behalf to sign pleadings. 18. This argument of Mr. Rajpurohit, is per se fallacious and not sustainable predominantly because Order XXVII, Rule 1 of the Code of Civil Procedure relates to signing of the pleading. It is true that State can authorize any person to sign the written statement or other pleadings on its behalf, but the dispute in present case, is not about signing of the written statement, but in relation to proving the contents of the written statement. It is an admitted fact that Veer Singh had signed the written statement on behalf of the defendants, for which it was incumbent upon him to have come in the witness box and prove the contents of the written statement. In absence of his deposition, the written statement filed by the defendant - State remained un-proved, which is fatal to the pleadings and stand of the defendants. As a consequence of such lacuna on part of the defendants, their entire case falls flat on the ground, for which neither the written statement nor their counter-claim could be given any credence. 19. This Court finds substance in the arguments of the appellant, that the agreement, if held to be not properly executed, when it comes to adjudication of their counter-claim, the same position of fact and law has to apply for both the parties namely plaintiff and defendant. Firstly, the finding recorded by the Trial Court in relation to execution of the agreement itself is incorrect and unsustainable. Firstly, the finding recorded by the Trial Court in relation to execution of the agreement itself is incorrect and unsustainable. Merely because at the place of signing the contract, the executant has written word 'Governor' instead of the term 'Government', the same does not render the contract/agreement Nos. 37 and 59 illegal or unenforceable. 20. Nobody's had questioned the validity or the existence of the contract; both the parties had accepted the factum of the execution of these two agreements and both of them have relied upon the terms thereof. Merely because of some discrepancy about the place of signature, the Trial Court ought not to have pronounced the agreement to be invalid or nullity and if the agreement had been held invalid as regards clause 8 relating to levy of penalty, it ought to have been held invalid even for recovery of the amount relating to final bills, which too undisputedly emanate and relate to these two agreements. 21. In view of the above, finding and observation made by the Trial Court in this regard is unsustainable and the same is, therefore, quashed. 22. Hence, the present appeal is being decided on the basis of the other findings recorded by the Trial Court, treating the agreements to be valid. 23. Learned counsel for the appellant submitted that the Trial court has erred in observing that Bishamber Singh (DW-1) had appeared in the witness box and was made a witness, whereas he was not present at the time of execution of the contract. In this regard, Mr. Rajpurohit, submitted that Officer of the Department appearing as witness need not be the person, who had worked with the Department at the time of execution of contract; any other subsequent incumbent in the office can be a witness. 24. He submitted that Bishamber Singh was admittedly an officer of the appellant Department and whatever he deposed was based on official record, for which his evidence could not have been discarded by the Trial Court. 25. 24. He submitted that Bishamber Singh was admittedly an officer of the appellant Department and whatever he deposed was based on official record, for which his evidence could not have been discarded by the Trial Court. 25. Though argument of learned counsel is prima facie correct as far as legal principles are concerned, but if his argument is examined vis-à-vis the facts of the present case, this Court finds that Bishamber Singh (DW-1) appeared in the witness box and had deposed that he had worked as an Assistant Engineer at Birdwal while admitting that he was not Assistant Engineer at the relevant time, when the contractor was executing the work. He had further deposed that he had prepared the final bill, on the basis of the measurement book and other relevant material. 26. Be that as it may, a careful examination of the findings given in relation to issue No. 8, as noticed in para No. 16 of the judgment of the court below, it transpires that the learned Trial Court has not discarded the evidence of Bishamber Singh, but has rather used this and relied upon his statement as the said witness had admitted the factum of preparing the final bill Ex. A-3 and A-5; based on which, the judgment and decree to the tune of Rs. 17,658/- has been passed. In this view of the matter the argument of Mr. Rajpurohit that learned Trial Court has erred in discarding testimony of Bishamber Singh if tested on the facts obtaining in the case, comes out to be fallacious. 27. At last, Mr. Rajpurohit contended that the Trial Court had not appreciated the statement of other witnesses Mohan Lal (DW-2), Hari Singh (DW-3) and Mohan Lal S/o. Munshi Ram (DW-4) in their proper perspective. 28. He submitted that an overall reading of the statement leaves no room for ambiguity that the plaintiff's case was false and he has not completed the contract in time and that the defendants were having sufficient stock of tiles and other materials with them so as to enable them to complete the work in time. 29. This argument of learned counsel for the State is also bereft of any substance or force, as none of the abovementioned witnesses have been able to show that the required quantity of tiles and other materials were available on site. On the contrary letter Ex. 29. This argument of learned counsel for the State is also bereft of any substance or force, as none of the abovementioned witnesses have been able to show that the required quantity of tiles and other materials were available on site. On the contrary letter Ex. A-5 and A-6 clearly show that at the relevant time the department was running short of tiles and lining work was not also complete at the relevant time, for which reason the plaintiff-Contractor could not execute the work in time. The defendants - appellants have failed to place any documentary or oral evidence which could demonstrate that it was the plaintiff's fault, due to which the contract was terminated and payment of final bill was withheld. 30. Mr. Prashant Tatia, learned counsel appearing for the respondents-plaintiff submitted that the order under challenge passed by the Trial Court is well reasoned and the judgment is based on proper appreciation of documentary as well as oral evidence. 31. He submitted that the Trial Court has passed a rather conservative order confining plaintiff's claim only to a limited amount of Rs. 17,658/-, while rejecting his other prayers. 32. Mr. Tatia, further submitted that the arguments advanced by the counsel for the State - appellant are unsustainable and untenable in law and they are too technical to be given cognizance or credence. 33. Having dealt with all the arguments one by one, this Court does not find any reason to unsettle the judgment and decree dated 27.11.1989, as the same does not call for any interference. Having perused documentary and other evidence available on record, this Court does not find any justifiable reason to interfere in an otherwise infallible judgment. The appeal, therefore, fails.