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2018 DIGILAW 1520 (GAU)

LALRINNGHETI v. GANESH CHHETRI

2018-10-09

MICHAEL ZOTHANKHUMA

body2018
JUDGMENT : MICHAEL ZOTHANKHUMA, J. 1. Heard Mr. Victor L. Ralte, learned counsel for the appellants as well as Mr. L.H. Lianhrima, learned senior counsel assisted by Ms. H. Lalmalsawmi, learned counsel appearing for the respondent. 2. The appellants have filed the present second appeal against the Judgment and Order dated 25.04.2016 passed by the Court of the learned Additional District Judge-II, Aizawl in RFA No. 15/2015. The facts of the case in brief is that the appellant No. 1 had hired the JCB of the respondent at an hourly rate of Rs. 1800/-, which was put down in writing, vide an Agreement dated 12.05.2008, executed between the appellant No. 1 and the respondent. The appellant No. 1 is the wife of the appellant No. 2. 3. As the entire hiring charges of the JCB was not paid by the appellant, the respondent filed Money Suit No. 34/2010 in the Court of the Senior Civil Judge, Aizawl against the appellant No. 1, praying for a decree for recovery of Rs. 2,93,700/-, as the balance hiring charges of the JCB from the appellants. The appellants took the plea that they were not liable to pay Rs. 2,93,700/- to the respondent as the respondent's JCB had worked for only 489 hours. The bill amount for 489 hours amounted to Rs. 8,80,200/-. As Rs. 6 lakh had already been paid by the appellants to the respondent, balance amount that was left to be paid was Rs. 2,80,200/-. However, the appellants took the stand that as the appellant No. 1 was the Power of Attorney holder of one J.H. Lalthianghlima, in respect of the J.H. Lalthianghlima's contract work in which the respondent's JCB was being used, the said J.H. Lalthianghlima was to pay the balance Rs. 2,80,200/- to the respondent, as the Power of Attorney given by Sh. J.H. Lalthianghlima to the appellant No. 1 had been revoked. 4. The learned Trial Court held that the Agreement dated 12.05.2008 executed between the appellant No. 1 and the respondent did not make any mention of Sh. J.H. Lalthianghlima for execution of the above Agreement and as such, only the appellant No. 1 was responsible /liable for payment of the outstanding amount as hiring cost for the respondent's JCB. The learned Trial Court thereafter decreed that the appellant No. 1 was to pay to the respondent the outstanding hiring cost of the JCB amounting to Rs. J.H. Lalthianghlima for execution of the above Agreement and as such, only the appellant No. 1 was responsible /liable for payment of the outstanding amount as hiring cost for the respondent's JCB. The learned Trial Court thereafter decreed that the appellant No. 1 was to pay to the respondent the outstanding hiring cost of the JCB amounting to Rs. 2,80,200/- to the respondent. 5. The appellants, who are husband and wife being aggrieved by the Judgment and Order dated 15.10.2015 passed by the learned Trial Court in Money Suit No. 34/2010, filed RFA No. 15/2015. The same was dismissed by the first Appellate Court vide Order dated 25.04.2016 on concurrent findings of facts. The appellants have thus approached this Court against the concurrent findings of facts made by the learned Courts below. 6. The following substantial questions of law were framed on 16.08.2016, which are reproduced below:- "(i) Whether the decisions of the learned Lower Courts could be sustainable in law without payment of ad volarem court fees by the plaintiff/respondent in the Money Suit No. 34/2010. (i) Whether the plaint in Money Suit No. 34/2010 is liable to declared non est in law for not accompanying by verification of the pleadings. (iii) Whether the decisions of the learned Lower Courts below can be sustainable on facts and on law when the same suffers from nonjoinder of necessary party in the suit." 7. The counsel for the appellants submits that he does not wish to press the substantial question of law Nos. 1 and 2. However, he submits that with regard to the 3rd substantial question of law formulated, the learned Courts below should have dismissed the suit filed by the respondent due to non-joinder of necessary party, i.e. non-joinder of Sh. J.H. Lalthianghlima, who has since expired. He submits that the appellant No. 1 was the Power of Attorney holder Sh. J.H. Lalthianghlima. The contract work, for which the respondent's JCB was hired, pertained to the contract work allotted to Sh. J.H. Lalthianghlima. The Agreement dated 12.05.2008 executed between the appellant No. 1 and the respondent provided that the appellant No. 1 would make payment for the cost of hiring the JCB from each running bill received by her and that the appellant No. 1 would hire the JCB till completion of the road excavation. J.H. Lalthianghlima. The Agreement dated 12.05.2008 executed between the appellant No. 1 and the respondent provided that the appellant No. 1 would make payment for the cost of hiring the JCB from each running bill received by her and that the appellant No. 1 would hire the JCB till completion of the road excavation. However, in view of the cancellation / revocation of the Power of Attorney given to the appellant No. 1 by Sh. J.H. Lalthianghlima, the appellant No. 1 could not continue with the contract work any longer. Also, no further bill could be received by the appellant No. 1. Thus, Sh. J.H. Lalthianghlima, being the Contractor of the work, the dues payable to the respondent, should have been paid by Sh. J.H. Lalthianghlima, and for that to happen, the respondent was duty bound to implead Sh. J.H. Lalthianghlima as a necessary party in the suit. 8. The counsel for the appellants submits that the Agreement dated 12.05.2008 provided that the appellant No. 1 shall make payment for the cost of hiring the JCB from each running bill received by her and that the JCB was to be used till completion of road excavation. However, in view of revocation of the Power of Attorney by Sh. J.H. Lalthianghlima before completion of the contract work, no running bill was receivable by the appellant No. 1 any longer and accordingly, the appellant No. 1 could not be saddled with any liability in respect of the hiring charges of the JCB. He further submits that the respondent having violated the terms of the Agreement, as he had not completed the road excavation, the respondent could not claim any outstanding liability on the basis of the Agreement he had violated. He submits that the present issue should also be formulated as a substantial question of law. 9. The learned counsel for the appellant thus submits that as the learned Courts below have not gone into Clause 4 and 5 of the Agreement dated 12.05.2008, the impugned Judgments are based on findings, which are perverse. He, accordingly, prays for setting aside the impugned Judgments of the learned Courts below. 10. Mr. 9. The learned counsel for the appellant thus submits that as the learned Courts below have not gone into Clause 4 and 5 of the Agreement dated 12.05.2008, the impugned Judgments are based on findings, which are perverse. He, accordingly, prays for setting aside the impugned Judgments of the learned Courts below. 10. Mr. L.H. Lianhrima, learned senior counsel for the respondent submits that the Agreement dated 12.05.2008, executed between the appellant No. 1 and the respondent, does not make any mention of any J.H. Lalthianghlima as being the Contractor of the road, for which the respondent's JCB was hired. Further, the appellant No. 1 having admitted in his evidence that there was a balance of Rs. 2,80,200/- due to the respondent, that appellant could not be allowed to wriggle out of his liability for making payment of outstanding dues, which are admitted by them. He also submits that as there are concurrent findings of facts made by the learned Courts below, there is no reason for this Court to allow the present second appeal. 11. I have heard the learned counsels for the parties. 12. The Agreement dated 12.05.2008 executed between the appellant No. 1 and the respondent states as follows:- "AGREEMENT This agreement is made on 12th May 2008 between Ganesh Chhetri S/o M.S. Chhetri (L), Chhinga Veng, Aizawl, Mizoram and Lalrinngheti W/o Lalrinkima, ITI Veng, Aizawl, Mizoram as mention herein below:- 1. Ganesh Chhetri is willing to rent out his JCB 3DX Super MZ-01/D-3317 to Lalrinngheti for working at Chhingchhip to Hualtu Road, 15.00 to 20.250 Kmp (SH : FC : PW and CD works) Package No. MZ-01-63'D' at the rate of Rs. 1800/- per hour. Lalrinngheti has also agreed to hire the JCB of Ganesh Chhetri as aforesaid. 2. The foodstuff for JCB operator shall be borne by Lalrinngheti. 3. The owner of JCB shall provide Diesel and also be responsible for any vehicle defect of the JCB. 4. Lalrinngheti shall make payment for the cost of hiring JCB from each running bill received by her. 5. Lalrinngheti shall hire the JCB of Ganesh Chhetri till completion of excavating the road as stated above. 6. This agreement has been made as agreed and consented by us." 13. The claim of the respondent against the appellant No. 1 for the hiring charges of the JCB amounts to Rs. 2,93,700/-, after Rs. 6 lakh had already been paid. 5. Lalrinngheti shall hire the JCB of Ganesh Chhetri till completion of excavating the road as stated above. 6. This agreement has been made as agreed and consented by us." 13. The claim of the respondent against the appellant No. 1 for the hiring charges of the JCB amounts to Rs. 2,93,700/-, after Rs. 6 lakh had already been paid. The appellant No. 1 has however, in her evidence stated that "the plaintiff worked 489 hours using his JCB which amounts to Rs. 8,80,200/-. From this, we have already given him Rs. 6,00,000/- and the balance amount is Rs. 2,80,200/- only". 14. As rightly held by the learned Trial Court, Sh. J.H. Lalthianghlima does not find mention in the Agreement dated 12.05.2008 executed between the parties. Accordingly, no liability could have been fastened upon Sh. J.H. Lalthianghlima by the respondent. If the appellants were of the view that Sh. J.H. Lalthianghlima was to have paid the balance amount of Rs. 2,80,200/-, the appellants could have filed a separate action /suit against the said Sh. J.H. Lalthianghlima, as there is no privity of contract between the respondent and the said Sh. J.H. Lalthianghlima. The appellants could have also impleaded Sh. J.H. Lalthianghlima in the suit, which they have not done. Accordingly, this Court finds that the Money Suit No. 34/2010 filed by the respondent in the Trial Court does not suffer from non-joinder of necessary party. 15. With regard to the appellants counsel's prayer for formulating an additional substantial question of law, this Court is of the view that the issue of who should pay the cost of hiring of the JCB or whether the respondent's JCB should have completed the road excavation, cannot be said to be a substantial question of law. Also, the appellants have not taken any action against the respondent for specific performance of the contract, if they were aggrieved by the action/inaction of the respondent with regard to hiring of his JCB till completion of the contract work. Further, the Agreement for hiring the JCB was executed between the respondent and the appellant No. 1, the appellant No. 1 having used the JCB, she was bound to pay the hiring charges. 16. With regard to the substantial question of law Nos. 1 and 2 formulated earlier, the record of RFA No. 15/2015 shows that the ad volarem court fees had been paid by the respondent. 16. With regard to the substantial question of law Nos. 1 and 2 formulated earlier, the record of RFA No. 15/2015 shows that the ad volarem court fees had been paid by the respondent. Further, though there is no verification of the plaint in the money suit in the form of a verification, there is an affidavit accompanying the plaint. Further the Mizoram Civil Courts Act, 2005 provides that the CPC shall be followed in spirit in all the Civil Courts. Pertinently, the written statements of the appellants does not contain any verification or affidavit. 17. In view of the reasons stated above, this Court does not find any ground to interfere with the concurrent findings of the facts made by the learned Courts below. The second appeal accordingly stands dismissed. 18. Send back the LCR.