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2019 DIGILAW 276 (HP)

Jagdish Kumar Nadda v. State Of Himachal Pradesh

2019-03-15

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The instant appeal is a classical example of frivolous and cantankerous litigation. 2. The parties in this appeal shall be referred to as the 'plaintiff' and 'defendants'. 3. The plaintiff, who retired as Joint Controller (Finance and Accounts) (Class-I), from HPPWD, filed a suit for recovery of Rs.28,250/- which was imposed upon him as damages for unauthorized occupation of Set No.C-14/73, Phagli, Shimla (for short 'premises in dispute'. The order of damages was assailed on the ground that the same was contrary to the orders passed by the learned Additional District Judge, Shimla, on 11.10.1995, whereby the plaintiff was held entitled to occupy the premises up to 11.11.1995 and had in fact vacated the same three days prior on 08.11.1995. It was further averred that the Estate Officer is not competent to assess and realize the licence fee. 4. The defendants contested the suit by filing written statement wherein it was averred that the plaintiff while in service of the defendants had been transferred from Shimla to Solan on 31.05.1993 and had retained government accommodation for two months i.e. up to 31.07.1993 and he was entitled to retain the same under Rule 10 of the H.P. Allotment of Government Residences (General Pool) Rules, 1984. However, the plaintiff did not vacate the premises in dispute within the stipulated period, even though, he was granted time up to 31.03.1994. It is only thereafter that the eviction proceedings were initiated against him by the Assistant Estate Manager, Government of India, Ministry of Urban Development, Grand Hotel, Shimla, on 03.07.1994 and orders to this effect were passed on 07.11.1994. In the meantime, the plaintiff was transferred back to Shimla and was allotted Set No.C-13, MLA Quarters, on 02.10.1994 which he occupied on 11.11.1994, but did not vacate Set No.C-14/73, Phagli, Shimla, up to 07.11.1995 and was thus liable to pay damages, as claimed. 5. From the pleadings of the parties, the learned trial Court on 26.09.2015 framed the following issues:- "1. Whether the plaintiff is entitled to the recovery of a sum of Rs.28,250/- along with interest, as prayed for? OPP. 2. Whether the suit in hand is not maintainable, as alleged? OPD. 3. Whether the plaintiff has no cause of action to file the present suit against the defendants, as alleged? OPD. 4. Whether this Court has no jurisdiction to try and maintain the suit, as alleged? OPP. 2. Whether the suit in hand is not maintainable, as alleged? OPD. 3. Whether the plaintiff has no cause of action to file the present suit against the defendants, as alleged? OPD. 4. Whether this Court has no jurisdiction to try and maintain the suit, as alleged? OPD. 5. Whether the plaintiff is estopped from filing the present suit on account of his own acts, deed and acquiescences? OPD. 6. Whether the suit in hand is bad for want of non compliance of provision of Section 80 of CPC, as alleged? OPD. 7. Whether the suit of the plaintiff is barred in terms of limitation, as alleged? OPD. 8. Whether the suit is bad for non joinder of necessary parties, specifically disclosed to be the Assistant Estate Manager, Government of India, as alleged? OPD. 9. Relief." 6. After recording evidence and evaluating the same, the learned trial Court dismissed the suit and the appeal filed against the same before the learned first appellate Court also met with the same fate. 7. Undeterred, the plaintiff has approached this Court by way of instant appeal contending therein that the findings recorded by the learned Courts below are perverse as the oral and documentary evidence has been ignored by both the learned Courts below. 8. I have heard the learned counsel for the appellant and have also gone through the judgments passed by the learned Courts below. 9. At the outset, it needs to be observed that even the witnesses examined by the plaintiff have not supported the case set up by him, as would be evident from further discussion in this regard. 10. Pw-1, Suman Sharma, Superintendent, Grade-II, Office of the Directorate of Estate, H.P. Secretariat, Shimla, proved on record the allotment letter Ex.PW1/A of house No. C-14/73, Phagli, Shimla. She deposed that the plaintiff occupied the said accommodation from 11.12.1986 to 10.11.1994 for which period the rent was deposited by him. Further, during cross examination, she admitted that after allotment of Set No. C-13, MLA Quarters, he did not vacate the accommodation in Set No. C-14/73, Phagli, Shimla, and was thus liable to pay the damages. 11. Pw-2, Rajinder Kumar, Section Officer, GAD-Section, H.P. Secretariat, has proved on record letter Ex. PW2/A whereby extension was granted to the plaintiff for retaining accommodation i.e. 'premises in dispute'. 11. Pw-2, Rajinder Kumar, Section Officer, GAD-Section, H.P. Secretariat, has proved on record letter Ex. PW2/A whereby extension was granted to the plaintiff for retaining accommodation i.e. 'premises in dispute'. However, during cross examination, the witness admitted that extension was granted to the plaintiff only for a period with effect from 01.04.1994 to 10.11.1994 on the condition that double the licence fee would be paid by him. He further deposed that even though the plaintiff paid double the licence fee, but he failed to pay an amount of Rs.1911/-. 12. Pw-3 Mukesh Sharma, Senior Assistant, Treasury, Accounts and Lotteries, Shimla, deposed that since the plaintiff had been occupying two premises at one time, therefore, damages were imposed upon him by the State Government which were recovered from his leave encashment. 13. Pw-4, Kundan Thakur, Clerk, HPPWD, Nirman Bhawan, Shimla, deposed that the damages were recovered from the leave encashment of the plaintiff by with-holding the amount of Rs.28,250/- which was recovered from him pursuant to the directions issued to this effect by the Assistant Estate Manager, Urban Development, Shimla. 14. The plaintiff himself appeared as PW-5 and reiterated the averments made in the plaint and tendered in evidence certain orders i.e. Ex.PW5/B and Ex. PW5/C. In addition thereto, he also placed on record certain other documents. During cross examination, the plaintiff admitted that eviction orders were passed by the Estate Manager, Government of India. He admitted that he had retained the 'premises in dispute' initially for two months when he was transferred to Dr. Y.S. Parmar University on 01.06.1993 and thereafter admitted that he had retained 'premises in dispute' up to 31.03.1994 by paying double rent. He further admitted that even despite lapse of extended period, he did not vacate the 'premises in dispute' which was finally vacated by him on 07.11.1995 on the orders passed by the learned Additional District Judge, Shimla. 15. The defendants, on the other hand, examined Punam Puri, Superintendent, Grade-I, Directorate of Estate, Shimla, as DW-1, who tendered her affidavit on record as Ex.DW1/A wherein she reiterated the averments contained in the written statement. She also tendered in evidence letter dated 30.08.1990 as Ex. DW1/B and list of properties as Ex. DW1/C. During cross examination, this witness admitted that the 'premises in dispute' were allotted to the plaintiff under general pool. She also tendered in evidence letter dated 30.08.1990 as Ex. DW1/B and list of properties as Ex. DW1/C. During cross examination, this witness admitted that the 'premises in dispute' were allotted to the plaintiff under general pool. However, she feigned ignorance that a compromise decree was passed in a Civil Suit filed before the appellate authority. 16. This in entirety is the evidence led by both the parties and the same makes it evidently clear that the claim set up by the plaintiff is absolutely frivolous. 17. The learned counsel for the appellant has vehemently argued that copy of the order dated 11.10.1995 Ex. DX passed by the learned Additional District Judge clinches the issue as the plaintiff was allowed by him to retain the 'premises in dispute' and had in fact vacated the same within the stipulated period on 08.11.1995 and, therefore, the findings recorded by the learned Courts below without taking into consideration true import of this document, are perverse and thus liable to be set aside. 18. However, I find no merit in this contention for the simple reason that it was in view of the statement of the plaintiff that he would vacate and handover the vacant possession of the 'premises in dispute' on or before 11.11.1995 that the appeal was dismissed as withdrawn. Nowhere in the statement or the order passed on the relevant day is there any observation much less an order that the plaintiff would be exempted from payment of penal rent for his accommodation up to 11.11.1995. Here, I feel that it is unfortunate that the act of generosity and kindness shown by the Court is misconstrued by the plaintiff which only goes to prove how cantankerous the plaintiff can be. 19. The findings recorded by the learned Courts below are pure findings of fact and are, therefore, immune from challenge in the second appeal. No question of law much less any substantial question of law arises for consideration in this appeal and accordingly the same is dismissed. Pending application, if any, also stands disposed of. 20. Before parting, it needs to be observed that normally this Court would have imposed heavy costs upon the plaintiff. No question of law much less any substantial question of law arises for consideration in this appeal and accordingly the same is dismissed. Pending application, if any, also stands disposed of. 20. Before parting, it needs to be observed that normally this Court would have imposed heavy costs upon the plaintiff. However, taking into consideration the age of the plaintiff and the fact that notice of the appeal has not been issued to the opposite side, this Court refrains from doing so and while doing so, he is warned not to indulge in any frivolous litigation of the instant kind.