IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 429 of 1998 Date of decision : 18.9.2009. State of H.P. …Appellant. Versus Jit Ram and another …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Vikas Rathore, Deputy Advocate General. For the Respondent No.1: Mr. Sunil Mohan Goel, Advocate. Deepak Gupta, J. (Oral). This Regular Second Appeal is directed against the Judgement of the learned Additional District Judge, Kullu, District Kullu, in Civil Appeal No. 32 of 1997 decided on 23rd July, 1997, whereby the judgement of the learned Senior Sub Judge, Kullu, was set-aside and the suit of the decree for recovery of Rs.48,480/- as damages was decreed. The appeal was admitted on the following questions of law:- 1. Whether the non-production of documentary evidence is substantial question of law? 2. Whether the withholding of documentary evidence gives rise to the presumption under Section 114 of the Evidence Act? 3. That the mis-reading of documentary as well as oral evidence itself amounts to substantial question of law? 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 In fact, in my opinion, these questions of law are not substantial question of law. However, with a view to finally dispose of the appeal, it would be relevant to give some facts. The respondent (here-in-after referred to as the plaintiff) was running a saw mill under the name and style of M/s Maharani Industries at Bhunter. On 19.7.1985 he was carrying 202 dimdimas of fir wood measuring 20.02 cubic meters in a truck from Hamta forest to his saw-mill at Bhunter. Lekh Ram, defendant No.2, who at that time was working as Inspector in the Enforcement Department impounded the forest produce as well as the truck in which the same was being carried. The plaintiff was charged with having committed offences punishable under Rule 20 of the H.P.Forest Produce Transit (Land Routes) Rules, 1978 and under Section 87/112 of the Motor Vehicles Act. Both the plaintiff and his driver were prosecuted by the State for illegally exporting the forest produce and for having violated the signal given by the police. It is not disputed that the plaintiff as well as driver were acquitted vide judgement dated 14.8.1987. The appeal filed by the State in this Court was dismissed on 5.9.1991. While acquitting the accused, the learned CJM had directed that the case property be returned to the appellant after the period of appeal is over. Since an appeal was filed, the case property was not returned to the plaintiff. After the decision of the appeal, the plaintiff requested the State to return the suit property. According to the plaintiff, he saw that the wood which was seized in the year 1985 had totally rotted and was not worth a single penny. He, therefore, refused to take back the wood and filed a suit for damages. 3 The learned trial Court dismissed the suit on the ground that notice under Section 80 CPC had not been given and that the plaintiff had failed to prove that the timber was rotten when the State had offered to return the same. The learned trial Court also held that the plaintiff failed to prove the value of the seized timber. The learned lower Appellate Court came to the conclusion that in fact notice under Section 80 CPC had been given. He held that the State was responsible for the loss caused to the plaintiff and decreed the suit for the sum claimed. In my view, these are pure questions of fact and no question of law arises. In para 7 of the plaint there was an averment that notice under Section 80 CPC was sent through registered post to the State on 9.5.1992. Copy of notice is exhibited as Ext. PA. In reply to the averments made in the plaint all that was stated that the notice sent by the plaintiff is not a proper and legal notice as provided under Section 80 CPC. Therefore, the State never denied the receipt of the notice but according to it the notice was not a proper notice. Once the receipt of the notice was not denied the onus shifted on the defendant-State to prove how the notice was not a valid or proper notice. Therefore, the lower appellate Court right in holding that the notice was sent and served upon the defendant. As far as the other issues are concerned, the plaintiff examined himself and five other witnesses. He clearly mentioned that the volume of timber seized in the year 1985 and its value at the relevant time. The other witnesses who have appeared to prove the case of the plaintiff are officers of the Forest Corporation. These officers themselves state that they found that the forest 4 produce which was seized had totally deteriorated and was of no use. According to them, the cost of one dimdima of fir in the year 1992 was Rs.2,600/-. On the basis of this evidence the learned lower Court decreed the suit. The defendant in fact led no evidence to show that the seized timber had been properly stored and stacked and that in 1982 seven years after it was seized, it was in the same condition as it was when it was seized. The findings of the learned Court below are pure findings of fact. Merely because the plaintiff has not led documentary evidence to prove the price list prepared by the Forest Corporation is not a ground to dismiss his suit. The officials of the Forest Corporation in the statement clearly gave the price of dimdimas. If this price was not correct nothing prevented the State from leading evidence. In view of the above discussion, no question of law arises in this appeal. The appeal is accordingly dismissed. Since the appeal has been dismissed the amount deposited by the State alongwith interest accrued thereupon shall be paid to the plaintiff-respondent No.1 by remitting it to his bank account details whereof shall be furnished by the learned counsel for the respondent within three weeks from today. September18, 2009. ( Deepak Gupta ) ™ Judge.