IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 472 of 2003 alongwith CMPMO No.169 of 2003. Reserved on: 24.2.2011 Date of decision: 1.3.2011 RSA No.472 of 2003 Jai Prakash Hydro Power Ltd. & anr. …. Appellants Versus Smt.Shiv Dassi & ors. ….. Respondents CMPMO No.169 of 2003 Sh.Kiran Singh & ors. …… Petitioners Versus Jai Parkash Hydro Power Ltd. & anr. …… Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No RSA No.472 of 2003 For the appellants: Sh.Bhupender Gupta, Senior Advocate with Mr.Ajit Jaswal, Advocate. For the respondents: Sh.Vinay Kuthiala, Advocate. 2 CMPMO No.169 of 2003 For the petitioners: Sh.Vinay Kuthiala, Advocate. For the respondents: Sh.Bhupender Gupta, Senior Advocate with Mr.Ajit Jaswal, Advocate. _________________________________________________ Deepak Gupta, J. This Regular Second Appeal and the CMPMO are being disposed of by a common judgment since they both arise out of the same proceedings. Briefly stated the facts of the case are that the plaintiff Kandu Ram filed a suit for recovery of Rs.1,13,735/- against the defendants-Jai Prakash Hydro Power Ltd. The allegations leading to the filing of the suit were that the defendants-company had laid a high tension transmission line for transmission of power from Karchham to Jhakari and towers were being erected. It was alleged that during the execution of such work, extensive damage was caused by the defendants-company to the property of the plaintiff whereby the land and apple trees of the plaintiff were damaged. On account of these factors, the plaintiff claimed a sum of Rs.1,13,735/- as 3 damages caused to his apple trees as assessed by a horticulture expert. In the plaint, it was stated that despite the requests of the plaintiff to pay compensation, the defendants-company had not paid any compensation and hence the suit for recovery. It would be pertinent to mention that in the plaint, it was also stated that the defendants- Company had paid a meagre amount to the plaintiff that too according to its own choice. The defendants filed its written statement and the main plea taken in the same was that the suit was not maintainable since the plaintiff had accepted a sum of Rs.38,950/- in full and final settlement of his claim after assessment of damages. In replication, the plaintiff did not specifically deny the fact that he had received a sum of Rs.38,950/- but came up with the plea that the amount had not been properly assessed and that some documents were procured by deceitful means. It was also alleged that the plaintiff never admitted that the amount received by him was in full and final settlement of his claim. According to the plaintiff, he had received the 4 amount under protest but being an illiterate person, he did not know what the defendants had written on the papers. On the basis of these pleadings, the following issues were framed by the learned Trial Court:- “1. Whether the plaintiff is entitled for the decree of damages to the sum of Rs.1,13,735/-, as prayed for? OPP 2. Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD 3. Whether the defendant has paid the damages to the sum of Rs.38,950/- to the plaintiff? OPD 4. Relief.” The parties led evidence. The plaintiff examined himself as PW/1, the horticulture expert Sh.B.S.Bajwa as PW/2 and one Sh.Atma Ram, as PW/3. The defendants only examined one Sh.K.B.R. Dube who was the attorney of the defendants- company. The learned Trial Court vide its judgment dated 26.3.2003 dismissed the suit of the plaintiff. It 5 came to the conclusion that the plaintiff had received Rs.38,950/- in full and final settlement of his claim as was evident from the documents Exts.D/1 to D/4. The learned Trial Court also came to the conclusion that the report of the expert, Ext.PW2/A was not a proper report. Thereafter, an appeal was filed by the plaintiff and the same was allowed by the learned District Judge. The learned District Judge came to the conclusion that the documents Exts.D/1 to D/4 have not been proved in accordance with law and, therefore, could not be read in evidence. He also held that since neither the Managing Director nor the General Manager of the defendant-company had appeared in person, the statement of the power of attorney DW/1 Sh.K.B.R. Dube could not be read in evidence. He however, held that the defendants had proved that the amount of Rs.38,950/- had been paid to the plaintiff by the defendant-company and, therefore, decreed the suit and held that this amount is liable to be adjusted against the decretal amount. He decreed the suit for Rs.1,13,735/- but not in favour of the plaintiff 6 alone but in favour of all the other co-owners mentioned in the Jamabandi Ext.PW1/A. The defendants being aggrieved by the judgment and decree passed by the learned District Judge filed RSA No.472 of 2003. The plaintiff is aggrieved by that portion of the judgment of the learned District Judge whereby he has directed that the amount shall be paid to all the co-owners mentioned in the Jamabandi Ext.PW1/A and, therefore, has filed CMPMO No.169 of 2003. The Regular Second Appeal was admitted on the following substantial questions of law:- “1. Whether the Lower Appellate Court has acted without jurisdiction in granting the decree in favour of such persons who were not party to the suit and not laid any claim? If the Lower Appellate Court was of the view that the plaintiff-respondent has failed to prove the family partition and other co-owners of the land were also entitled for the damages, was not the 7 suit liable to be dismissed for non-joinder of necessary parties. 2. Whether the Lower Appellate Court has committed grave error of jurisdiction and taken erroneous view of law that no reliance on Exhibits D1 to D4 can be placed, as the same were merely Photostat copies and were not proved by the defendants-appellants, by ignoring the admissions made by the plaintiff- respondent as PW/1 admitting the same? Are not such findings of the Lower Appellate Court adversely effected when it ignores the material evidence from consideration? 3. Whether the Lower Appellate Court has taken an erroneous and perverse view of law in raising adverse inference against the defendants-appellants in not examining either the General Manager or the Managing Director of the Company when duly authorized attorney on behalf of the Company appeared as DW-1, has 8 not the Lower Appellate Court committed error of jurisdiction in rejecting the testimony of DW-1 also on the plea that he being an employee of the company is not independent and competent witness?” I have heard Sh.Bhupender Gupta, learned senior counsel for the appellant-company and Sh.Vinay Kuthiala, learned counsel for the respondent. At the outset, I may state that the judgment of the learned Lower Appellate Court shows total lack of reasoning and lack of knowledge of the basic principles of law. As far as question No.1 is concerned, there was no issue in this regard. Even as per the defendants, the plaintiff was the owner of the land and they had paid compensation to the plaintiff. The co-owners had never approached the Court and in case the learned Lower Appellate Court felt that they were necessary parties to the suit, he should have given an opportunity to the plaintiff to array them as proforma defendants in the suit and should have issued notices to the said 9 persons. If the plaintiff still failed to bring the said parties on record then the suit could have been dismissed for non-joinder of necessary parties. However, the learned Lower Appellate Court could not have passed a decree in favour of the persons who had not even approached him. The finding given by the learned Lower Appellate Court that the plaintiff had failed to prove the family partition was totally illegal. This was not a question in issue in the suit. Even if such an issue had been raised and partition had not been proved, no decree could have been passed in favour of the other co-owners without their being first impleaded as parties to the suit. As far as the second question is concerned, the lack of basic judicial knowledge is even more apparent. The plaintiff when he appeared in the witness box as PW/1 admitted his signatures on the documents Ext.D1 to D4. The photocopies of the document were marked and exhibited in evidence. The learned Lower Appellate Court has held that the mere making of the documents as exhibits is not sufficient to prove the 10 same since the original documents should have been produced and proved. If a party admits the photocopy of a document to be correct and admits his signatures thereon then it cannot be said that the document has not been proved. Even otherwise, the learned Lower Appellate Court does not appear to have read the evidence which clearly shows that when these documents were exhibited, the Presiding Officer had seen the originals which were thereafter returned to the defendant. Therefore, the finding of the learned Lower Appellate Court that the originals were never produced is totally wrong and is liable to be set aside. The plaintiff filed an affidavit which was read as examination-in-chief. In this affidavit, he took up the plea that after the damage was caused to his property, some nominal interim payment was made and the officials of the defendants-company played a fraud on him. According to the plaintiff, the officials of the company namely Gian Chand Rathore and K.B.Dube had told him that they would make payment to him and in case payment was not made then he (the plaintiff) could approach the 11 Court by filing a suit. The plaintiff further alleged that he believed Sh.Gian Chand Rathore. He accepted what Sh.Gian Chand Rathore had stated, to be correct, since the said Gian Chand Rathore was earlier posted as SDM, Rampur. Relying upon this portion of the evidence, the judgment of the learned Trial Court was set aside by the learned Lower Appellate Court. It is well settled law that when any party pleads fraud, it is required to plead the full particulars of such fraud. In the plaint, there is no allegation of such fraud. In fact, the plaintiff tried to hoodwink the learned Trial Court and did not make a mention of the fact that he had received an amount of Rs.38,950/- for the defendant-company which by no stretch of imagination can be said to be a meagre amount. In the replication, the plaintiff stated that his signatures were obtained on the documents Ext.D1 to D4 by deceitful means. Even in the replication, other than making the vague allegations, no particulars of the fraud were pleaded. Therefore, the evidence of fraud which 12 was totally beyond the pleadings could not be read in evidence. The plaintiff in his cross-examination clearly admitted his signatures on the documents Ext.D1 to D4. He also admitted that in accordance with these documents, he had received a sum of Rs.38,900/-. The documents D/1 to D/3 are three separate receipts whereby a sum of Rs.18000/-; Rs.18000/- and Rs.2950/- respectively were paid to the plaintiff by the defendants-company. In all these receipts, it has been mentioned that the amount has been paid in full and final settlement of the compensation towards damages to the crops and apple trees of the plaintiff by laying the transmission lines. Ext.D/4 is the assessment and here also the plaintiff has appended his signature on the same and agreed to this assessment. In this case we are dealing with a plaintiff who does not mention in the plaint that he has received an amount of Rs.38,950/-. He does not allege fraud nor states that the documents were got signed by him fraudulently. It is only when the defence is specifically taken by the defendants- 13 company that the plaintiff had accepted a sum of Rs.38,950/- in full and final settlement of his claim after assessing the damages vide documents Ext.D1 to D4 that the plaintiff comes up with a plea that the documents were got signed by deceitful means but again does not give any details of the fraud. In such circumstances, the statement of the plaintiff that he had signed these documents without knowing what was written on them cannot be believed and the learned Trial Court was fully justified in holding that the plaintiff was estopped from filing the suit having received the amount of Rs.38,950/- in full and final settlement of the claim. The learned Lower Appellate Court committed a grave error and totally ignored the basic principles of the rules of evidence in discarding the documents Exts.D1 to D4. The learned Lower Appellate Court has discarded the statement of DW/1 only on the ground that since he was neither General Manager nor the Managing Director of the company, his statement could not be read in evidence. This again shows total lack of knowledge of the basic principles of law. The authorities cited by the learned Lower 14 Appellate Court relate to the cases filed by individuals. The Apex Court has held that a General Attorney who is not aware of the facts cannot be expected to depose on the factual aspects of the matter and in such situation where there is non- examination of a party, the Court can draw an adverse inference against such a party. Here we are dealing with a case where the defendant is a company. A company is a juristic person. It cannot be expected that the Managing Director or the General Manager of the Company must appear in each and every case. They in fact, may not be aware about the factual aspects of the case. The defendants-company has produced Sh.Dube as DW/1 who was duly authorized to give the statement and was also aware about the facts as is apparent from the affidavit of the plaintiff himself who states that it was Sh.Rathore and Sh.Dube who had told him that the compensation would be given to him. DW/1 clearly stated that the documents Ext.DW1 to DW/4 were signed by the plaintiff after he understood that he was being paid compensation in full and final settlement of the 15 claim and after the compensation was duly assessed. Therefore, the learned Lower Appellate Court gravely erred in discarding the testimony of the defendant’s witness. In view of the above discussion, the appeal is allowed. The substantial questions No.2 and 3 are decided in favour of the defendants and against the plaintiff and question No.1 is decided partly in favour of the plaintiff and partly in favour of the defendants. The judgment and decree passed by the learned Lower Appellate Court is set aside and the judgment and decree passed by the learned Trial Court is restored. The suit of the plaintiff is dismissed. The appeal and the petition are disposed of in the aforesaid terms. No order as to costs. Mach 1, 2011 ( Deepak Gupta ) (m) Judge