IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 171 of 2001 Judgment reserved on : 2.8.2011 Decided on : 31.8.2011 Rajinder Singh Tegta ….. Appellant. Vs. Managing Director, HPMC and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Ajay Kumar, Advocate. For the Respondents : Mr. Balbir Singh Chauhan, Advocate, for respondents No.1 and 2. Kuldip Singh, J The plaintiff has come in second appeal against judgment, decree dated 17.4.1999 passed by learned Addl. District Judge, Shimla in Civil Appeal No.15-S/13 of 1996, reversing judgment, decree dated 30.12.1995 passed by learned Sub Judge Ist Class, Court No.1, Rohru in Civil Suit No.27/1 of 1992. 2. The facts in brief are that appellant had filed a suit for recovery of `66348/- against respondents on the averments that in the apple season of 1989 respondent No.1 through its officer incharge entered into an agreement with the appellant for carriage/ destruction/transportation of apple crop at different places. The Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… appellant was allotted the job for carriage of 376 apple boxes/bags and for destruction of 7286 apple boxes/bags of apple on behalf of respondent No.1, which was accepted by appellant. 3. The respondent No.3 was incharge of Apple Procurement Centre, Mehendli under whose direct supervision the appellant had completed the job. The bills were verified and forwarded through respondent No.3 by respondent No.2, to the head office, but the respondents have failed to release the payment of `3008/- and ` 43716/- despite notice. The appellant has claimed interest at the rate of 14% per annum and filed a suit for recovery of ` 66348/-. 4. The suit was contested by respondents No.1 and 2 by filing written statement in which preliminary objections of maintainability, privity of contract, mis-joinder and non-joinder of necessary parties were taken. On merits, it has been admitted that a contract for procurement of culled fruit at the rate of `3/- per bag was given but appellant has been paid `73812/- for 24604 bags. It has been denied that any amount is payable to appellant as claimed by appellant. A prayer was made for dismissal of the suit. 5. The replication was filed and on the pleadings of the parties the following issues were framed:- 1. Whether there were contracts for destruction etc. of the apple bags between the plaintiff and defendants, as alleged ? OPP 2. Whether the suit of the plaintiff is not maintainable, as alleged? OPD 3. Relief. …3… The issue No.1 was answered in affirmative and issue No.2 in negative. The learned Sub Judge decreed the suit of the appellant on 30.12.1995 for a sum of `66,348/- alongwith future interest at the rate of 14% per annum from the date of filing of the suit till realization. In appeal learned Addl. District Judge on 17.4.1999 set aside the judgment, decree dated 30.12.1995, hence second appeal which has been admitted on following substantial question of law:- “Whether the Addl. District Judge, Shimla has grossly mis-construed and mis-read the evidence, more particularly the documentary evidence, Exts.PX, PW-4/A, PW-4/B, PW-5/A, PW-5/B and DW-1/A and findings recorded contradictory to the evidence on record is vitiated or not?” 6. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by learned counsel for the appellant that the learned lower appellate Court has misconstrued and misinterpreted the evidence on record, more particularly, Ex.PX, Ex.PW-4/A, Ex.PW-4/B, Ex.PW-5/A, Ex.PW-5/B and Ex.DW-1/A in accepting the appeal and dismissing the suit. The learned counsel for the respondents has submitted that the learned lower appellate Court after due appreciation the material on record has recorded a finding of fact and no substantial question of law is involved in the appeal. He has supported the impugned judgment, decree and prayed for dismissal of the appeal. 7. The learned Addl. District Judge has held that respondent No.1 had not issued any instructions to respondent No.3, …4… therefore, respondent No.3 was not authorized to get the destruction work of rotten apples through appellant. In case respondent No.3 has got such work executed through the appellant contrary to the policy Ex.DW-1/A, in that event respondents No.1 and 2 cannot be held responsible for paying the suit amount to the appellant. 8. The case of the appellant is that in the year 1989 he was allotted the job for carriage of 376 apple boxes and for destruction of 7286 apple boxes on behalf of respondent No.1. Ex.PW-4/A is a letter written by respondent No.3; to the Assistant Marketing Officer of respondent No.1 vide which verified bill of `3008/- of appellant was forwarded for payment. Ex.PW-5/A is the bill of appellant amounting to `3008/- at the rate of `8/- per bag for washing and carriage of 376 bags. This bill has been verified by respondent No.3. Ex.PW-4/B is the letter written by respondent No.3 to Assistant Marketing Officer of respondent No.1 forwarding duly verified bill amounting to `43,716/- to the appellant for payment. Ex.PW-5/B is the bill of appellant for destroying 7286 apple bags at the rate of `6/- per bag. This bill has also been verified by respondent No.3. Ex.PW-1/A is the notice dated 27.11.1991 issued on behalf of appellant to respondents No.1 and 2. 9. DW Ram Krishan Chauhan, Assistant Marketing Officer has stated that on 5.11.1989, Destruction Committee had inspected the Mehendli Collection Centre and prepared inspection report Ex.PX. It was found that most of bags out of 7286 were in rotten condition, Mian Ram was directed to destroy these bags and deposit the empty bags. He has stated that they had given the directions to …5… destroy the rotten apples. The respondents have examined only DW Ram Krishan Chauhan. Reply Ex.DA was tendered in evidence which has not been proved but it can be used against respondents as the respondents have relied this document in view of M/s. Rudnam Export-Import v. Eastern Associates Co. and others, AIR 1984, Delhi 20. 10. The appellant in the notice Ex.PW-1/A has specifically stated that he had carried 7286 apple bags from Mehendli Sub- Centre for destruction. He has also stated in the notice that he had incurred the expenses to the tune of ` 43716/- for the destruction of 7286 apple bags and ` 3008/- for washing and carriage of 376 bags. He has stated that the work was done under the supervision of Mian Ram. In reply Ex.DA it has not been specifically denied that appellant had destroyed 7286 bags nor it has been denied that appellant had washed and carried 376 bags as claimed by him. On the contrary it has been stated that Corporation had not issued instructions to its staff to destroy the apple bags nor the Corporation is liable to make payment of the same to the contractor. The bills, if verified wrongly or under duress, the Centre Incharge is responsible for the same. The Corporation is to deal with its staff. The verified bills Ex.PW-5/A and Ex.PW-5/B of appellant amounting to ` 3008/- and ` 43716/- respectively were received on 9.4.1990. The notice Ex.PW-1/A was issued on 27.11.1991. In between 9.4.1990 and 27.11.1991 the respondents No.1, 2 did not take the stand that no job for destruction of 7286 apple bags and carriage of 376 apple bags was entrusted to appellant. The submission of bills Ex.PW-5/A and Ex.PW-5/B in …6… between 9.4.1990 and 27.11.1991 were not questioned. The notice Ex.PW-1/A was issued to Managing Director and Assistant Marketing Officer but it has not been mentioned in reply Ex.DA on whose instructions the same was issued. Thus virtually till the filing of written statement the respondents never refuted the claim of appellant. The respondent No.3, who verified the bills Ex.PW-5/A and Ex.PW-5/B and an employee of the Corporation, was not examined, therefore, adverse inference is to be drawn against respondents No.1 and 2. 11. DW Ram Krishan Chauhan has stated that Mian Ram was directed to destroy 7286 apple bags as most of them were found in rotten condition at the time of inspection. The Support Price Scheme Ex.DW-1/A in no way adversely affects the claim of the appellant. The learned trial Court has rightly appreciated the material on record in decreeing the suit. The learned Addl. District Judge has misconstrued, misinterpreted Ex.PX, Ex.PW-4/A, Ex.PW-4/B, Ex.PW-5/A, Ex.PW-5/B and Ex. DW-1/A and other evidence on record in rejecting the claim of the appellant and reversing the judgment, decree dated 30.12.1995 of the learned trial Court. The substantial question of law noticed above is decided in favour of the appellant. The impugned judgment, decree is liable to be set aside. 12. In view of above discussion, judgment, decree dated 17.4.1999 passed by learned Addl. District Judge are set aside. The suit of the appellant is decreed for `66,348/- alongwith interest at the …7… rate of 6% per annum from the date of institution of the suit till realization with costs through out. August 31, 2011. ( Kuldip Singh ) (sks) Judge.