RSA No.4026 of 2009 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4026 of 2009 (O & M) Date of Decision: 05.04.2011 Mohan Madan and another ……Appellants Versus State of Haryana and others …...Respondents Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Babbar Bhan, Advocate for the appellants. Mr. Amit Goel, AAG, Haryana for the respondents. L.N. MITTAL, J (ORAL) Plaintiffs-Mohan Madan and Raj Kumar Madan, having failed in both the Courts below, have filed the instant second appeal. Plaintiff No.1 was threatened by a dreaded criminal. Plaintiff No.1 lodged FIR for the same. Plaintiff No.1 also helped the police in arresting the said criminal. However, thereafter persons of the criminal’s gang became more inimical towards the plaintiffs and their families. In view of the risk and danger to their lives, defendant Nos.1 to 4 provided security to the plaintiffs and their families. However, later on, the security was withdrawn. The defendants pasted notice for recovery of Rs.6,50,000/- from the plaintiffs. In the suit, the plaintiffs have challenged the said action of the defendants in demanding Rs.6,50,000/- towards cost of the security provided by RSA No.4026 of 2009 (O & M) - 2 - the defendants to the plaintiffs. The plaintiffs alleged that they are not liable to pay the same. Making these averments, the plaintiffs sought declaration and injunction. Defendants broadly controverted the plaint allegations. It was pleaded that plaintiffs were provided personal security on their own request against payment for the same in the year 2001. The plaintiffs did not deposit costs of the said security and, therefore, demand of Rs.6,50,000/- has been rightly made. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Sonepat vide judgment and decree dated 04.03.2009 dismissed the plaintiffs’ suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Sonepat vide judgment and decree dated 10.08.2009. Feeling aggrieved, plaintiffs have filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants contended that the plaintiffs/appellants never made any request to the defendants for providing security against payment and the defendants/respondents on their own provided security to the plaintiffs for some period apprehending danger to their lives and, therefore, plaintiffs are not liable to make any payment to the defendants for the same. RSA No.4026 of 2009 (O & M) - 3 - On the other hand, learned counsel for the respondents contended that admittedly plaintiffs availed of the security (Gunmen) provided by the defendants and, therefore, plaintiffs are liable to make payment for the same. I have carefully considered the rival contentions. The defendants specifically pleaded that security was provided to the plaintiffs on their written request against payment. However, the alleged written request has not seen the light of the day and, therefore, entire claim of the defendants for demanding cost of the security from the plaintiffs is washed out. In addition to the aforesaid, learned counsel for the respondents is unable to refer to any rules, instructions or policy decision of the respondents for demanding cost of the security from the plaintiffs. Learned counsel for the respondents vehemently contended that security was provided to the plaintiffs since December, 1998 till March, 2004 and the demand is being made for the same and since plaintiffs availed of the said security, they are liable to make payment for the same. The contention is completely misconceived. Even the respondents/defendants very well knew that plaintiffs are not liable to make payment and it is manifestly for this reason that the defendants never demanded any payment for the security for long period of seven years. The demand was made in or about June, 2005 for the first time. If the plaintiffs had been provided RSA No.4026 of 2009 (O & M) - 4 - security since the year 1997 (as pleaded in the plaint and written statement) or since December, 1998 as per evidence led by the defendants, the defendants would have demanded security costs thereof from the plaintiffs within a reasonable time when security was provided for the first time. However, the security as per evidence of the defendants was withdrawn in March, 2004 and demand was made in or about June, 2005 i.e almost seven years after the security was provided to the plaintiffs for the first time. If the plaintiffs were liable to pay for the security, there is no explanation as to why cost of the security was not demanded from the plaintiffs during the intervening period of seven years. Stand of the defendants is also very wavering. In preliminary objection No.2 of the written statement, it was pleaded that security was provided in the year 2001 to the plaintiffs and it was withdrawn on 22.08.2005 as they did not deposit the cost amount thereof. However, in paragraph 6 on merits of the written statement, it was pleaded that security was provided to the plaintiffs in the year 1997. In evidence, it was depicted by the defendants that security was provided to the plaintiffs since December, 1998 till March, 2004. Thus the stand of the defendants is also completely wavering and self-contradictory. Defendants have produced calculation of the cost amount of the security. The said calculation is for amount of Rs.6,97,750/-. However, the defendants had demanded Rs.6,50,000/- only from the RSA No.4026 of 2009 (O & M) - 5 - plaintiffs. It is thus apparent that the aforesaid calculation has been prepared subsequently, and the demand was raised without any such calculation. Approach of the Courts below in non-suiting the plaintiffs is completely erroneous, illegal and unsustainable. The plaintiffs have been non-suited merely on the ground that they availed of the security provided by the defendants and, therefore, plaintiffs are liable to pay for the same. However, the plaintiffs never knew that they have to pay for the security. The defendants never made the plaintiffs aware about the same, when security was provided to them. If defendants had informed that plaintiffs had to pay for the security, then it was for the plaintiffs to have decided whether to accept the security or not on payment of cost. There is specific stand of the defendants that security was provided to the plaintiffs on their written request against payment, but defendants have miserably failed to substantiate the same. There is thus no material on record to depict that plaintiffs are liable to pay for the security provided to them or that the plaintiffs are laible to pay the disputed amount of Rs.6,50,000/- being demanded by the defendants from the plaintiffs. For the reasons aforesaid, I find that concurrent finding of the Courts below against the plaintiffs is patently perverse, illegal and unsustainable in law. Substantial question of law arises for determination in this second appeal to this effect and the same is answered in favour of the plaintiffs/appellants. It is held that plaintiffs RSA No.4026 of 2009 (O & M) - 6 - are not liable to pay the disputed amount and demand thereof by defendants from the plaintiffs is patently illegal and unsustainable. For the reasons aforesaid, the instant second appeal is allowed. Judgments and decrees of the Courts below are set aside and suit filed by the plaintiffs is decreed declaring that impugned notice demanding amount of Rs.6,50,000/- from the plaintiffs is illegal, null and void. Defendants are injuncted permanently from recovering the said amount from the plaintiffs and from taking any step towards recovery of the said amount. (L. N. MITTAL) JUDGE 05.04.2011 A.kaundal