IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 341 of 2004 Reserved on: 07.07.2009 Date of decision: 09.07.2009 Shri Lakhi Ram ... Appellant Versus State of Himachal Pradesh … Respondent Coram: The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 For the appellant: Mr. Ajay Kumar, Advocate. For the respondent: Mrs. Shubh Mahajan, Deputy Advocate General and Mr. J. S. Guleria, Assistant Advocate General. _____________________________________________________________ V.K. Ahuja, J. : This is a Regular First Appeal under Section 96 of the Code of Civil Procedure filed by the appellant against the judgment and decree dated 26.06.2004, passed by the Court of learned District Judge, Shimla, vide which he has passed a decree for Rs.41,595.32 paise in favour of the appellant and against the defendant-State and had dismissed rest of the claim of the appellant/plaintiff. Being aggrieved by the dismissal of the claim regarding the remaining amount, the appellant/plaintiff has come up in appeal before this Court. Briefly stated the facts of the case are that the appellant as plaintiff filed a suit for recovery of Rs.5,45,600/- alongwith interest @18% per annum from the date of the suit till realization of the decreetal amount. The plaintiff alleged that he was an accused in FIR No. 71/77. Later on, this 1Whether reporters of Local Papers may be allowed to see the judgment? 2 FIR was converted in FIR Nos. 92/97 and 94/9, registered under Sections 379,411,467,468,420, 120-B read with Section 5(2) of the Prevention of Corruption Act for alleged felling of trees from the Government Forest. It is not disputed that during investigation of the case, the police seized 4188 scants of timber from the plaintiff at Sandasu on 15.11.1977. The plaintiff alongwith others were tried for the charges which resulted in acquittal of the plaintiff. During the trial of the case, seized timber was ordered to be sold by public auction and the sale proceeds were deposited in the Court. It was further alleged that at the time of acquittal of the plaintiff, the Special Judge (Forest), Shimla had confiscated a sum of Rs.22,177.78 paise to the State of Himachal Pradesh and the remaining sale proceeds received through publication auction of the seized timber were ordered to be refunded to the plaintiff which order was affirmed by this Court and the appeal was also dismissed by the Hon’ble Supreme Court of India. It was alleged that thereafter the plaintiff filed an application in the Court of learned Special Judge (Forest), Shimla for release of sale price of the seized timber. The State of H.P. replied that out of the total seized scants, only 1648 scants were sold by public auction and the auction sale could not be completed on three occasions and the earnest money deposited by the successful bidders was forfeited by the State of Himachal Pradesh which should have been paid to the plaintiff. The State of Himachal Pradesh took up a plea that 1672 scants were allegedly burnt into fire and thus, the plaintiff alleged that the forest officials had mis-appropriated 2540 scants and failed to account for the same by the act of omission and negligence of the forest officials. The cost of those 2540 scants was stated to be Rs.1,55,000/- and in all a sum of Rs. 5,45,600/- was claimed including the value of the scants and interest thereon. The defendant/respondent-State admitted the facts in regard to the registration of the case, the seizure of 4188 scants by the police and the order of acquittal. However, they denied that they were negligent resulting in 3 causing the loss of 2540 scants to the plaintiff. It was pleaded that at the time of taking of scants on Sapurdarii by the Forest Department, 858 scants were found short and 1672 scants were burnt in the fire on 26.05.1984 and the remaining 1648 scants were sold for Rs.1,01,000/- and as such there is no negligence on part of the Forest officials and they are not liable to pay the suit amount. Parties led their evidence and learned trial Court concluded that the plaintiff had failed to prove that the defendants were negligent and as such the plaintiff was held entitled for auction price of Rs.1,01,000/- and out of the earnest money the amount was apportioned in between the plaintiff and Defendant-State and accordingly, the plaintiff was held entitled to a sum of Rs.41,595.32 paise from the defendant as his share in the earnest money. The suit was accordingly decreed for this amount and the plaintiff has filed the present appeal for the balance amount for which the claim was dismissed by the learned trial Court. I have heard learned counsel for the parties and have gone through the record of the case. The only plea raised by the learned counsel for the appellant was in regard to the scants burnt in the fire number of which was 1672 and for the price of those scants. The submissions made by the learned counsel for the appellant were that the reasoning given by the learned trial Court in para 14 of the Judgment is not correct. It was not for the plaintiff to prove the negligence. It was further pleaded that the burden was on the defendant to show that they had taken due care and caution that the property was not destroyed in fire and, therefore, those findings are liable to be reversed. On the other hand, the learned Assistant Advocate General has supported the reasoning given by the learned trial Court in its Judgment. The only point which arises for discussion is the question as to whether the scants were burnt in fire due to negligence on the part of the Forest officials and as to whether the plaintiff has been able to prove this 4 negligence having been caused by the officials of the State. It has to be seen as to what duty was cast upon the officials of the State in which they failed leading to an inference that the scants were burnt in fire due to their negligence. The reasons have been given to the above proposition by the learned trial Court in paras 14 and 15 of the Judgment. The learned trial Court has clearly observed in regard to the missing timber which was not handed over to the Forest Department for which no submissions were made. However, in regard to the burnt scants, it was clearly observed that the plaintiff has failed to satisfy that the defendant has failed to take such care and caution in respect to the seized timber as a reasonable and prudent man. It was rightly observed by the learned trial Court in para-15 of the Judgment that the seized timber was not a small piece of jewellery and the defendant State could have not kept it under lock and key. The seized scants, as per the statement of Basher Chand (DW-1), posted as Senior Assistant, in the Office of the Divisional Forest Officer, Rohru, were stacked in the forest compound and one Rama Nand chowkidar was deputed for guarding the timber. Other timber of Forest Department was also stacked there and the said chowkidar is stated to have died. The FIR was lodged by the said Rama Nand, chowkidar. It has been proved in evidence (Ext. D-1), in which it was alleged that the fire had taken place because of the negligence of some other chowkidar, who was not the employee of the Forest Department. Thus the learned trial Court concluded that as per the statement of Basher Chand all precautions had been taken to guard and protect the seized scants which were burnt in fire. It is clear from the above discussion that the timber was stacked in the forest compound and the Forest Department deputed one chowkidar to guard the same. In case the timber had been seized by the State and had been kept in the open and it was to be kept in open since there is no proof of store to stack such a number of scants, it was for the plaintiff to have taken 5 precautions either he should have requested the State Government to allow him to depute a chowkidar or could have suggested a place where the timber could be stacked and due precautions could be taken. The fact that it was a timber which is to be stacked in an open space cannot be ignored and there is no specific precaution which was required to be taken by the defendant which was not taken by them to draw an inference of negligence. It was a question of fact to be proved by the plaintiff in whom he failed and no specific negligence was attributed to the officials of the defendant and the same was also not proved in accordance with law. In view of the discussion I do not find any reason to disagree with the findings recorded by the learned trial Court after considering the evidence on record and accordingly learned trial Court had granted the relief partly in favour of the plaintiff and against the defendant for the timber lost/destroyed in the fire and had rightly declined the relief in regard to the remaining timber which findings do not call for any interference by this Court and as such are liable to be affirmed. In view of the above discussion, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. However, the parties are left to bear their own costs. ( V. K. Ahuja ), July 8, 2009(brb) Judge