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2021 DIGILAW 2216 (RAJ)

Tara Chand v. State of Rajasthan

2021-11-24

CHANDRA KUMAR SONGARA

body2021
ORDER 1. Instant first appeal under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure, 1908 has been preferred by the appellant-plaintiff against the impugned judgment and decree dated 29.10.2001 passed by the Court of Additional District Judge, No.2, Bharatpur, whereby Civil Suit No.21/1996 titled as Tarachand Vs. State of Rajasthan & Others for recovery of money of Rs.53,823/- instituted by the appellant-plaintiff, had been dismissed. 2. The facts of the present appeal, in brief, are that the appellant-plaintiff (hereinafter to be referred as 'plaintiff') instituted a civil suit under Order 7 Rule 1 of the Code of Civil Procedure, 1908 against the respondents-defendants (hereinafter to be referred as 'defendant') before the trial Court, which was transferred to the Court of Additional District Judge No.2, Bharatpur for its final adjudication. 3. In the suit, it was pleaded by the plaintiff that the civil suit has been instituted on behalf of the plaintiff, who was a registered Contractor in the Forest Department, against the defendants for the recovery of sum of Rs.53,823/-. The plaintiff submitted his bid for the tenders invited by the Forest Department for 40 Hectors land in Jatmasi- Vinua, which was duly accepted being the lowest and the order to finish the work was issued on 15.02.1995. The In-charge/ defendant provided the lay-out of the site on 26.02.1995 and the plaintiff begun his work. The plaintiff had to stop the work, after a while, as the land turned out to be rocky and gritty. The plaintiff informed the defendants about the same and asked for permission to finish the work, as per BSR, which was refused by the defendants. The defendant No.5 consciously refused to co-operate with the plaintiff and did not make any payment towards the running bills of the plaintiff, which were essential for the completion of work. The defendant No.5 wrongly directed the plaintiff to give-up the work on the disputed land vide order dated 24.03.1995, for which the plaintiff was not given any opportunity to be heard and the order to seize 5% of security amount/caution money was also wrongly passed. In this regard, when the plaintiff informed the defendants that he had performed work amounting to total sum of Rs.80,810/-, he was promised to be paid an advance sum of Rs.8558/- but the same had not been paid by the Department. In this regard, when the plaintiff informed the defendants that he had performed work amounting to total sum of Rs.80,810/-, he was promised to be paid an advance sum of Rs.8558/- but the same had not been paid by the Department. It was, therefore, prayed before the learned trial Court to direct the defendants to pay Rs.53,823/- to the plaintiff alongwith 18% annual interest from the date of claim till the date of payment. 4. After notice being served, the respondents appeared before the learned trial Court, filed written-statement and denied the averments made in the plaint. 5. It was stated in the written-statement by the defendants that the plaintiff neither sent any letter to the defendants nor asked for permission to work as per BSR nor the plaintiff was eligible to seek such permission. It was further stated that the plaintiff did not show any work-progress within the fixed period of a month nor he performed any work on site nor presented any running bills for payment, hence, the question of payment does not arise. It was also stated that the plaintiff neither acted in accordance with the contract nor made any efforts to complete the work within the stipulated period of one month. It was stated that the defendants served notices on the plaintiff for slow work and for not performing his work as per fixed criteria of standards on 24.03.1995 and 25.03.1995. The plaintiff assured to complete the work in his response but there was no progress. Lastly, it was stated that the plaintiff is not entitled to receive any amount from the defendants, hence, this plaint be rejected and costs of Rs.2000/- be awarded in favour of the defendants. 6. On the basis of the pleadings of the parties, the learned trial Court framed as many as five issues, which read as under :- "1. Whether the plaintiff is entitled to get Rs.53,823/- from the defendants? 2. Whether the plaintiff, as per defendants, had neither finished the work within the fixed period nor presented any running bills? 3. Whether the agreement (muhayada) executed between the plaintiff and the defendants was for digging of simple soil, as per G Scheduled? 4. Whether the suit of the plaintiff is not maintainable in absence of notice ? 5. Relief." 7. Whether the plaintiff, as per defendants, had neither finished the work within the fixed period nor presented any running bills? 3. Whether the agreement (muhayada) executed between the plaintiff and the defendants was for digging of simple soil, as per G Scheduled? 4. Whether the suit of the plaintiff is not maintainable in absence of notice ? 5. Relief." 7. The case was posted for recording evidence but the evidence of the plaintiff was closed on 23.10.2001 by the learned trial Court and the defendants did not want to adduce any evidence. 8. The learned trial Court, after hearing the parties, dismissed the suit instituted by the plaintiff vide its impugned judgment and decree dated 29.10.2001. Hence, this appeal on behalf of the plaintiff challenging the impugned judgment and decree dated 29.10.2001 passed by the learned trial Court. 9. Learned counsel appearing for the appellant-plaintiff submits that the plaintiff is a registered Contractor in the Forest Department and on invitation, he submitted his tender for Jatmasi-Vinua 40 hectors, which was accepted by the Forest Department on 31.01.1995 and thereafter, confirmed on 15.02.1995. Counsel further submits that the impugned judgment and decree dated 29.10.2001 is contrary to law and facts available on record and the learned trial Court has committed a grave error in closing the evidence of the plaintiff on 23.10.2001. Counsel further submits that it was prima-facie proved on record that despite sanctioning the aforesaid amount, the payment of the same has not been made to the plaintiff and the plaintiff's case is genuine as he has a right to claim the amount, which has been sanctioned by the respondents on account of his work. Counsel contends that the learned trial Court has committed a grave error in not appreciating the provisions of Order 8 Rule 5 and Order 12 Rule 6 of C.P.C. and in view thereof the averments made in the plaint deemed to have been admitted by the defendants and on this deemed admission the suit of the plaintiff is liable to be decreed. Counsel further contends that the payment was not made to the plaintiff and this factual aspect was not specifically denied by the defendants in his written-statement. Counsel also contends that due to some unavoidable circumstances, beyond control, the plaintiff, could not produce his evidence. Counsel further contends that the payment was not made to the plaintiff and this factual aspect was not specifically denied by the defendants in his written-statement. Counsel also contends that due to some unavoidable circumstances, beyond control, the plaintiff, could not produce his evidence. Counsel prays that the present appeal be allowed and the impugned judgment and decree dated 29.10.2001 passed by the learned trial Court be quashed and set aside. It is further prayed that the suit be decreed in favour of the plaintiff or in alternative the suit be remanded to the learned trial Court to decide afresh after recording the evidence of the plaintiff. 10. Per contra, learned counsel appearing for the respondents-defendants, has strongly opposed the first appeal. 11. I have considered the arguments raised by the learned counsel appearing for the parties and perused the material made available on record. 12. Indisputedly, the civil suit had been instituted by the plaintiff way back in the year, 1996 and his evidence was closed on 23.10.2001 after affording last opportunity to lead his evidence on 21.09.2001. Issue Nos.1 & 3 had been decided in favour of the defendants as the plaintiff did not lead any evidence in support of his plaint. 13. The defendants served notices on plaintiff dated 24.03.1995 & 25.03.1995 to complete the stipulated work within the prescribed period and the plaintiff did not produce any evidence in this regard, hence, the trial Court has rightly decided the Issue No.2 in favour of the defendants. 14. Issue No.4 had been decided against the defendants since defendants did not lead any evidence in support of the issue. This Court also concurs the view already taken by the trial Court. 15. Since the evidence of the plaintiff was closed on 23.10.2001 by the learned trial Court and he had neither adduced any evidence in support of his plaint nor exhibited any documentary evidence and the defendants had also not adduced any evidence. Therefore, it can be held that the learned trial Court has not committed any illegality or perversity in rejecting the suit filed by the plaintiff. 16. In view of above discussion, this Court is of the considered view that the trial Court has rightly dismissed the suit instituted by the plaintiff. 17. Consequently, the present appeal, devoid of merits, is hereby dismissed. Pending applications, if any, also stand disposed of.