IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 583 of 2000. Decided on : 21.5.2010. Himachal Pradesh State Forest Corporation Ltd. …Appellant. Versus Bhagti and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. S.S.Sood, Advocate vice Mr. Neel Kamal Sood, Advocate. For the respondents : Mr. B. N. Mehta, Advocate. Kuldip Singh , Judge (Oral) This appeal is directed against the judgment, decree dated 30.8.2000 passed by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 52-N/13 of 1999 affirming judgment, decree dated 15.10.1998 passed by the learned Senior Sub Judge, Sirmaur District at Nahan in Civil Suit No. 20/1 of 1993. 2. The facts, in brief, are that appellant had filed a suit for recovery of Rs. 81,986/- against Ram Dass predecessor of respondents on account of short supply of resin by Ram Dass. The further case of the appellant is that in March, 1990 the appellant had invited bids for extraction of resin from lot No. 4/90, Nahan. The 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 minimum yield of the resin to be extracted from 1000 blazes i.e. a section was to be 30 quintals and in response to the same Ram Dass gave the bid on 2.3.1990 offering the rate of Rs. 178/- per quintal. The offer of Ram Dass was accepted by the appellant on 17.3.1990. The number of blazes was 5300. 3. The further case of the appellant is that an agreement was executed between the parties on 22.5.1990 and the parties mutually agreed to extract the resin from 10426 blazes instead of 5300 blazes . Ram Dass agreed to give minimum yield of 30 quintals pure resin per section to the appellant. The clause 25 of the agreement provides that on failure to deliver to appellant minimum yield of 30 quintals per section Ram Dass would be liable to pay to appellant Rs.1000/- per quintal for the short supply of resin. Ram Dass was under obligation to supply 312.78 quintals of resin from 10426 blazes to appellant on the basis of 30 quintals yield of resin per 1000 blazes. It has been alleged that Ram Dass could supply only 211.56 quintals resin from 10426 blazes resulting in short fall of 101.22 quintals of resin. It has been alleged that Ram Dass was liable to pay Rs. 1,01,220/- to appellant on account of short supply of 101.22 quintals of resin. 4. The appellant had also supplied tools / implements and material worth Rs. 11,015.72 to Ram Dass which he had not returned to appellant. Ram Dass was also liable to pay Rs. 814/- on account of income tax at the rate of 2.16%. In fact Ram Dass had supplied 211.56 quintals of resin to appellant as such he was entitled to a total sum of Rs. 36,843.68 at the rate of Rs.178/- per quintal after deducting Rs. 814/- income tax. Ram Dass had also deposited a sum 3 of Rs. 2000/- with appellant at the time of auction as earnest money. Therefore, after deducting the amounts to which Ram Dass was entitled from appellant, the liability of Ram Dass remained Rs. 73,392/-. He was also liable to pay interest at the rateof 12% per annum from 1.4.1992. Therefore, total amount recoverable from Ram Dass at the time of institution of suit was Rs. 81,986/-. The appellant however, for the purpose of court fee and jurisdiction valued the suit at Rs. 82,000/-. 5. The suit was contested by Ram Dass by filing written statement. He took the stand that a contract for working on 5300 blazes was given to him. He never took contract of 10426 blazes. He also took the plea that the appellant taking advantage of his oldage and illiteracy got prepared fraudulent documents. The extraction of resin from 10426 blazes was denied. Ram Dass also denied that he ever agreed to pay Rs. 1000/- per quintal for short supply of regin. Tools were never supplied initially to Ram Dass but some tools were supplied lateron which were returned to appellant. Ram Dass alleged that he was entitled to recover Rs. 38,843.68 from the appellant. Ram Dass raised counter claim of Rs. 54,043/- inclusive Rs.15200/- interest at the rate of 12% per annum on Rs. 38,843.68. The appellant filed replication and written statement to counter claim, in which the stand of the appellant which was taken in plaint was reiterated and case projected by Ram Dass in counter claim was denied. 6. On the pleadings of the parties, the following issues were framed:- 4 1. Whether the plaintiff is entitled to recover from the defendant a sum of Rs. 73,392/- along with interest at the rate of 12% per annum w.e.f. April 1, 1992, as alleged? OPP 2. Whether it is the defendant Ram Dass who is entitled to recover from the plaintiff a sum of Rs. 54,043/-, as alleged ? OPD 3. Whether the suit is not maintainable, as alleged? OPD 4. Whether the plaintiff has no cause of action, as alleged? OPD. 5. Relief. The issue No.1 was answered in negative. Issue No.2 was not pressed, issues No.3 and 4 were answered in affirmative and suit was dismissed by the learned Senior Sub Judge on 15.10.1998. The appellant filed appeal against the judgment, decree dated 15.10.1998 which was dismissed by the learned Additional District Judge on 30.8.2000. In these circumstances, the appellant has come in second appeal which has been admitted on the following substantial questions of law:- 1. Whether on the evidence on record the Courts below are not right to hold that the appellant-plaintiff has failed to prove agreement Ex.PD, on the basis of which the suit was filed, if so, its effect? 2. Whether there was lack of agressio mentium on part of the respondents/defendants (predecessor-in-interest of respondent / defendant ) and in that event the respondents/defendants (predecessor-in-interest of respondent /defendant ) had intention to cause wrongful loss to the Appellant/Plaintiff? 7. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellant has submitted that the Courts below have mis-construed, mis- interpreted the material documents more particularly Ex.PD 5 agreement. He has submitted that Ram Dass did not supply the resin in accordance with the agreement. He had intention to cause wrongful loss to the appellant. The learned counsel for the appellant has prayed for setting aside the impugned judgment, decree. The learned counsel for the respondent has submitted that appellant has miserably failed to prove agreement and other documents on record. He has supported the impugned judgment, decree. 8. The learned counsel for the appellant could not elaborate on substantial question of law No.2. The suit is based upon agreement Ex.PD. It is the case of the appellant that Ram Dass had supplied less quantity of resin, therefore, as per agreement he was liable to pay to appellant at the rate of Rs.1000/- per quintal for short supply of resin. The substantial question of law No.2 does not emerge from the claim put forward by appellant in the Court. The substantial question of law No.2 is thus decided against the appellant. 9. The appellant has examined PW-1 Amrik Singh. In his statement he has exhibited some documents including agreement Ex.PD. In cross-examination, he has stated that plaint bears the signatures of Prem Singh Thakur, the then Divisional Manager of the appellant with whom he had never worked. He had never seen him signing. He has stated that in Ex.PB number of blazes has been mentioned 5300 and the defendant was authorized to work on these blazes. He has stated that he had never seen Ram Dass signing. He has stated that he does not know the names and addresses of the witnesses on Ex.PD. The defendant had supplied 211.56 quintals resin worth Rs. 37,657.68. PW-1 has not stated that he was 6 present at the time of execution of agreement Ex.PD. PW-1 has not stated that he had seen Prem Singh Thakur and Ram Dass writing and signing documents. In these circumstances, execution of agreement Ex.PD has not been proved. Ram Dass has died during the pendency of the suit. Ram Dass filed written statement through G.P.A. wherein he took the stand of oldage and illiteracy. 10. Ram Dass was alive when DW-1 Shashi Pal appeared as witness. DW-1 Shashi Pal is the grand son of Ram Dass. He has stated that defendant was quite old and sick. He could not see and also not in a position to move out. In cross-examination agreement Ex.PD was put to him. He said that he could not say that signatures on each page are of Ram Dass. Thus DW-1 has also not admitted the signatures of Ram Dass on Ex.PD. The appellant had filed the suit, the burden of proving the claim raised in the suit was on the appellant which has not been discharged. The two courts below have recorded a finding of fact that basic documents including agreement Ex.PD have not been proved by appellant. The findings recorded by two courts below regarding the legal proof of documents including Ex.PD emerge from the evidence on record. Mere exhibiting the documents does not dispense with their proof. In absence of proof of the documents, the appellant is not entitled to the claim put forward in the suit. The learned counsel for the respondents in the trial Court had not pressed the counter claim. In absence of proof of documents including agreement Ex.PD, no fault can be found with the findings recorded by the learned lower appellate Court that appellant is not entitled to recover the suit amount. The substantial question of law No.1 is decided against the appellant. 7 11. No other point was urged. 12. The result of the above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge. May 21, 2010. (GR)