IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA R.F.A. No. 12/2004 Date of decision: 22. 3. 2011 Sh. Anant Ram Negi ….Appellant Versus State of H.P. and others ……Respondents Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1no For the Appellant: Sh. G.D. Verma, Sr. Advocate, with Mr. B.C. Verma, Advocate. For the respondents : Mr. A.K. Bansal, Addl. Advocate General, for respondents No. 1 to 3. Mr. Rakesh Jaswal, Advocate, for respondents No. 4 and 5. Surinder Singh J. (Oral) The Civil suit of the appellant filed against the respondents, for recovery of ` 3,15,042/- was dismissed by the learned District Judge on 30.7.2003. Thus, the judgment and decree of dismissal by him has been assailed in the present appeal. 2. Shorn of unnecessary details, case of the appellant was that a criminal case was falsely 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - registered against him at the instance of the respondents with respect to the felling of trees allegedly from the Government land whereas he had purchased 37 trees of deodar and 162 trees of Kail of different classes from the private owners. The timber was seized by the Forest Department. (ii). The appellant was chargesheetetd tried and acquitted of the criminal charges by the Sub Divisional Judicial Magistrate, Theog and the case property, i.e., 48,834 M3 timber was ordered to be confiscated to the State. (iii). The said order of confiscation was challenged before the learned Sessions Judge which was set aside in appeal. Against this order/judgment, State preferred a revision petition which was also dismissed by the High Court on 22.12.1992. In the meantime, the confiscated property aforesaid was sold in a public auction by the defendant Corporation allegedly without complying with the proper procedure. Thus, the timber of the appellant was sold at a lower price and he suffered loss to the tune of ` 3,15,042/-. It was also pleaded by the appellant that this loss was because of the negligence of the officials of the - 3 - forest Department in preserving the seized timber which was exposed to the vagaries of nature. 3. The suit was resisted and contested by the respondents. The defendant-State in their reply contended that the timber in question was felled by the appellant from the Government land and defended their action of lodging criminal case against the appellant. Consequent thereupon, the timber was rightly seized and it was properly protected and remained in the supervision and custody of the forest officials. Whereas it was the case of the defendant Corporation that the timber in question was allowed to them in the year 1998 for auction. They conducted the public auction fairly and properly. 4. On the pleadings of the parties, learned trial Court framed the following issues:- (i) Whether the State of H.P. and its servants were negligent in protecting the timber from the date of its seizure up to the date of its auction and due to such negligence the timber got damaged as alleged?...OPP (ii) Whether the defendants No. 4 and 5 were also negligent in disposing of the timber under the orders of the court and they did not take suitable measures and steps to - 4 - sell the timber at prevailing market rate?...OPP. (iii) Whether the defendants No. 4 and 5 did not sell the seized timber inspite of the orders from the court within the time limit fixed by the Court. If so, its effect? ….OPP. (iv) If issues No. 1, 2 and 3 are proved, whether the plaintiff is entitled for damages, if so how much and from whom?....OPP. (v) Whether the suit is barred by time ?...OPD. (vi) Whether the suit has been filed without serving a valid and legal notice under Section 80 CPC, if so its effect?.... OPD. (vii) Whether the plaintiff is estopped to sue by his acts, deeds and conduct?... OPD. (viii) Whether the suit is barred by principle of resjudicata?....OPD. (ix) Relief. 5. The case was fixed for the evidence of the appellant. From the perusal of the record it appears that the various opportunities were accorded to the appellant to produce his witnesses as per list dated 1.1.2002 and up to 30.5.2003 only five witnesses were examined and the case was listed for 30.7.2003 for remaining evidence of the plaintiff. He did not take steps and witnesses were not present as such subject to cost of Rs 200/- it was adjourned for 30.8.2003 but plaintiff again did not produce his remaining witnesses nor took steps to - 5 - summon them. He also did not pay/deposit cost aforesaid. He also did not put in appearance on 30.8.2003. Therefore, the prayer made on behalf of the appellant for further adjournment was held unjustified thus rejected and the learned District Judge proposed to decide the matter in accordance with the provisions of Order 17 Rule 3 of the Code of Civil Procedure and observed that the plaintiff failed to lead any meaningful evidence on the issues aforesaid. Appellant himself did not step into the witness-box and furthermore, the witnesses already examined by him relate to the seizure of the timber of the plaintiff and its auction by the defendant and was no evidence with respect to the point in issue that the defendants were negligent in protecting the timber and while disposing of the same in public auction. 6. It is contended by Shri G.D. Verma, learned Senior Advocate for the appellant that the appellant could not put in appearance and take appropriate steps on account of the fact that defendant-State had registered various criminal cases against him and remained busy in pursuing his bail Cr.M.P. No. 2950/2003 which was ultimately decided on 1.8.2003 before the apex Court w.e.f. - 6 - June, 2003 till August, 2003. This fact is also mentioned in the grounds of appeal and has not been controverted by the defendants. The above contention apart, I find that there is no critical examination or proper evaluation and discussion of the evidence by the learned District Judge which impelled him to dismiss the suit of the appellant. 7. Therefore, the impugned judgment and decree passed by the learned District Judge are unsustainable as such is set aside. Consequently, in the interest of justice one more opportunity is afforded to the appellant to examine himself and produce his remaining witnesses on a date to be fixed by the learned District Judge. 8. The parties are hereby directed to appear before the learned District Judge Shimla on 4.4.2011 on which date the appellant shall tender the previous costs of ` 200/- to the defendants and the learned District Judge shall fix a date for remaining PWs and also for the examination of the plaintiff. In case the assistance of Court is required, shall obtain dasti summons for examining remaining witnesses mentioned at Sr. No. 6 and 7 of the list of witnesses dated 1.1.2002 on taking necessary steps within a week. It is clarified that no further opportunity in the - 7 - matter shall be granted by the learned District Judge to the plaintiff for the said purpose and the defendants shall also file their list of witnesses on 4.4.2011 or on a subsequent date on which the case of the plaintiff is listed for his evidence. 9. Since the matter is quite old, therefore, the learned District Judge is hereby directed to dispose of the matter finally on or before 31.10.2011. 10. Record of the learned District Judge be returned forthwith so as to reach on or before the date fixed. Appeal stands disposed of. No costs. March, 22, 2011 (Surinder Singh), (cm) Judge.