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2018 DIGILAW 28 (HP)

General Manager (telecom) Bsnl v. Mahinder Singh

2018-01-03

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The appellants are the defendants, who have suffered a decree at the hands of the trial Court and same stands affirmed by the learned first Appellate Court whereby a preliminary decree directing the parties to settle the accounts has been passed in favour of the plaintiff. The parties shall be referred to as the ''plaintiff'' and ''defendants''. 2. The brief facts giving rise to present appeal are that the defendants awarded to the plaintiff the construction work of Thana KotNaina Devi OFC route, Section Nos. I & II vide letter No. W-8032/02 dated 28. 5. 2003 and W-8032/04 dated 31. 5. 2003. The plaintiff started the execution of work by employing the men and machinery and most of the work was executed. But vide letter No. 8032/6 dated 17. 6. 2003, defendant No. 2 informed that the aforesaid work order stands cancelled and the plaintiff was requested to submit the left over store to the department. The plaintiff contacted the defendants about the aforesaid order, but it was disclosed that the work may be ordered to be resumed shortly and payment of whole of the work shall be made only after the completion of work. When the work had not been ordered to be resumed, then plaintiff submitted the left over store as per requirement of defendants on 20. 9. 2003 and Bill No. 203 of Rs. 5,28,176/- had been submitted on 13. 6. 2006 qua the work which had already been executed by the plaintiff as per the work order issued by the defendants. Thereafter, the plaintiff requested the defendants number of times to release the aforesaid payment, but they had refused on one pretext or the other and in such circumstances besides to the liability of BSNL to make the payment of aforesaid outstanding amount with interest from the date of submission of bill alongwith compensation, the concerned officials of BSNL had rendered themselves liable to make the payment in personal capacity since they delayed the payment of aforesaid amount on one pretext or the other without any legal and valid reason. The plaintiff was entitled for the settlement of the accounts for the aforesaid amount with interest equivalent to commercial transaction. Hence the suit. 3. The plaintiff was entitled for the settlement of the accounts for the aforesaid amount with interest equivalent to commercial transaction. Hence the suit. 3. The suit was resisted and contested by the defendants by filing written statement wherein preliminary objections qua maintainability, valuation, estoppel, locus-standi, limitation and special costs U/s 35-A CPC were raised. On merits, it was admitted to the extent that work order was issued to the plaintiff of Thana Kot-Naina Devi OFC route, Section Nos. I & II vide letter No. W-8032/02 dated 28. 5. 2003 and W-8032/04 dated 31. 5. 2003 and the store i. e. PLB PIPE 4 Km. valued Rs. 76,000/- and G. I. PIPE (65 mm) 50 in numbers valued Rs. 43,740/- was issued to the plaintiff on 10. 6. 2003 vide issue slip No. 026 of SDO(T), BIlaspur. It was further submitted that the plaintiff had received the above material from SDO(T), Bilaspur on 10. 6. 2003 and the plaintiff had kept this material in his store and the work was stopped by the defendants vide letter No. 8032/6 dated 17. 6. 2003 and the same was cancelled vide letter No. 8032/09 dated 27. 6. 2003. The plaintiff had not deposited the store to the defendants, hence defendant No. 2 requested the plaintiff to deposit the store on 28. 8. 2003 vide letter No. W-8032/11, but he did not deposit the store with defendant No. 2 and a reminder was issued to the plaintiff vide letter No. W-8032/13 dated 9. 9. 2003. The plaintiff had deposited the store to SDO (T), Bilaspur on 20. 9. 2003. It was further averred that department officer visited the site on 17. 6. 2003 and found that no construction was done on the spot but inspite of stopping the work and later on cancelled the work by the department. The plaintiff had shortened the aforesaid store and caused loss to the department. No machinery or labour was employed before 17. 6. 2003 and no work was done on the spot. The work was stopped and later on cancelled by the defendants, hence the question of resuming the work does not arise at all and when no work was done till 17. 6. 2003 on the spot, the plaintiff has no right to claim even a single paisa from the defendants. 6. 2003 and no work was done on the spot. The work was stopped and later on cancelled by the defendants, hence the question of resuming the work does not arise at all and when no work was done till 17. 6. 2003 on the spot, the plaintiff has no right to claim even a single paisa from the defendants. It was also denied that the defendants had ever given any type of assurance as alleged by the plaintiff. The work was stopped well within the time, the defendants are not liable to release any payment to the plaintiff and prayed for dismissal of the suit. 4. The plaintiff filed replication to the written statement filed by the defendants by reiterating the averments made in the plaint and denying those made in the written statement. 5. The learned trial Court on 19. 6. 2008, framed the following issues: 1. Whether the plaintiff is entitled for mandatory injunction as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 4. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the suit is barred by limitation? OPD 7. Relief. 6. After recording the evidence and evaluating the same, the suit filed by the plaintiff was decreed by passing a preliminary decree in his favour and against the defendants directing them to settle the accounts with the plaintiff for the work executed by the plaintiff of the aforesaid work within a period of three months. 7. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants preferred an appeal before the learned first Appellate Court, which too, has been ordered to be dismissed vide judgment and decree dated 20. 09. 2017, constraining the defendants to file the instant appeal. 8. It is vehemently argued by Mr. Adarsh Sharma, Advocate, learned counsel for the appellants that the findings recorded by the learned Courts below are totally perverse inasmuch as the suit on the face of it is apparently time barred as the work order pertained to the year 2003 whereas the suit came to be instituted only on 7. 4. 2008. It is vehemently argued by Mr. Adarsh Sharma, Advocate, learned counsel for the appellants that the findings recorded by the learned Courts below are totally perverse inasmuch as the suit on the face of it is apparently time barred as the work order pertained to the year 2003 whereas the suit came to be instituted only on 7. 4. 2008. I have heard learned counsel for the appellants and have gone through the material placed on record. 9. What is ''perverse'' was considered by the Hon''ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another , 2009 10 SCC 206 wherein it was held as under:- "26. In M. S. Narayanagouda v. Girijamma & Another , 1977 AIR(Kar) 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough,1878 1 LR 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined ''perverse'' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 27. The expression "perverse" has been defined by various dictionaries in the following manner: 1. Oxford Advanced Learner''s Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable. 2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable. 3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. 4. New Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant. 5. Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. 5. Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 28. In Shailendra Pratap & Another v. State of U. P. , 2003 1 SCC 761 , the Court observed thus: (SCC p. 766, para 8) "8 We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity. " 29. In Kuldeep Singh v. The Commissioner of Police & Others , 1999 2 SCC 10 , the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p. 14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with. " 30. The meaning of ''perverse'' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others , 1992 Supp2 SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. " 30. The meaning of ''perverse'' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others , 1992 Supp2 SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law. " 10. What is ''perverse'' has further been considered by this Court in RSA No. 436 of 2000, titled ''Rubi Sood and another vs. Major (Retd. ) Vijay Kumar Sud and others, decided on 28. 05. 2015 in the following manner:- "25 . . A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law. 26. 26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. 27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse. 28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated. " 11. What is ''perversity'' recently came up for consideration before the Hon''ble Supreme Court in Damodar Lal vs. Sohan Devi and others , 2016 3 SCC 78 wherein it was held as under:- "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse. 9. In Krishnan v. Backiam , 2007 12 SCC 190 , it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect. " 10. In Gurvachan Kaur v. Salikram , 2010 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532) "10. " 10. In Gurvachan Kaur v. Salikram , 2010 15 SCC 530 , at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent. " 11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes. 12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man''s inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity. 13. In Kulwant Kaur v. Gurdial Singh Mann , 2001 4 SCC 262 , this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp. 278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis--vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: ''103. Power of High Court to determine issues of fact. - In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal, (a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or (b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100. " The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with. " 14. In S. R. Tiwari v. Union of India , 2013 6 SCC 602 , after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration , 1984 4 SCC 635 , it was held at para 30: (S. R. Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. , 1984 4 SCC 635 , Kuldeep Singh v. Commr. of Police , 1999 2 SCC 10 , Gamini Bala Koteswara Rao v. State of A. P. , 2009 10 SCC 636 and Babu v. State of Kerala , 2010 9 SCC 189 )" This Court has also dealt with other aspects of perversity. 15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court. " 12. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court''s entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse. 13. Now, adverting to the contentions that the suit as filed by the plaintiff is time barred, it would be noticed that even though the SDO (T), BSNL, BIlaspur had vide his letter dated 17. 6. 2003 Ex. PW-1/E intimated the plaintiff to stop the work with immediate effect till further orders. But the work allotted in favour of the plaintiff had not been finally cancelled, but had been postponed and was to abide by the further orders that were to be issued by the defendants. Likewise, letter dated 27. 6. 2003 Ex. DW-3/E that was subsequently issued by SDO (T), Bilaspur, the work was though ordered to be cancelled with immediate effect, however, this again was made subject to directions from the higher authorities. It is not in dispute that no further correspondence, more particularly, from the higher authorities was placed by the defendants on record, which would have gone a long way to establish as to whether the work order in favour of the plaintiff had in fact been cancelled? In absence of any such communication being placed on record two conclusions can be drawn: (i) That the work order in favour of the plaintiff was still subsisting; and/or (ii) That an adverse inference deserves to be drawn against the defendants in case the work so allotted had in fact been cancelled, but the same was not intentionally brought on record or else it would have established that the suit had been filed within the prescribed period of limitation. 14. Apart from the above, it has specifically come on record that the matter was being prolonged by the defendants on one pretext or the other by not issuing measurement books by its officials to the higher authorities thereby rendering the higher authorities helpless in taking the final decision. Thus, in absence of any final decision, it cannot by any stretch of imagination be held that the suit as filed by the plaintiff was time barred much less hopelessly time barred as strenuously contended by the appellants. 15. Thus, in absence of any final decision, it cannot by any stretch of imagination be held that the suit as filed by the plaintiff was time barred much less hopelessly time barred as strenuously contended by the appellants. 15. Once the suit of the plaintiff is held to be within time, then obviously all other questions as were involved in the suit are required to be settled on the basis of the accounts as per the decree passed by the learned trial Court and affirmed by the learned first Appellate Court. 16. The findings recorded by the learned Courts below are concurrent findings of fact which are binding on this Court while hearing the second appeal. It is more so, when these findings are neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings have been found against the evidence nor against the pleadings and lastly, nor against any provision of law (Refer: Parminder Singh vs. Gurpreet Singh , 2017 AIR(SC) 3601). 17. No question of law much less substantial question of law arise for consideration in this appeal and the same is accordingly dismissed in limine, leaving the parties to bear their own costs. Pending application(s) if any, also stands dismissed.