RSA No. 3596 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3596 of 2007 Date of Decision: 20.10.09 Baru Ram son of Sh. Chria Ram, aged about 45 years, r/o village Durjanpur, Tehsil Narwana, District Jind. ... Appellant Versus 1. State of Haryana, through Collector, Jind. 2. District Excise & Taxation Commissioner, Jind. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Arun Palli, Senior Advocate, with Mr. Jai Bhagwan, Advocate, for the appellant. Ms. Rajat Goyal, Assistant Advocate General, Haryana, for the respondents. SHAM SUNDER, J. * * * * This appeal, is directed, against the judgment and decree, dated 05.05.04, rendered by the Court of Additional Civil Judge (Senior Division), Narwana, vide which, it dismissed the suit of the plaintiff, and the judgement and decree dated 07.06.07, rendered by the Court of Additional District Judge-II, Jind, vide which, it dismissed the RSA No. 3596 of 2007 2 appeal. 2. The facts, in brief, are that, Baru Ram, an agriculturist, resident of village Durjanpur, received summons, from the defendants, wherein, a demand, in the sum of Rs. 1,23,45,300/-, as arrears of excise revenue, for the year 1999-2000, was made. It was further mentioned, in the summons, that if the plaintiff, failed to make the aforesaid payment, he would be arrested, and his property would be attached. Thereafter, on inquiry, the plaintiff, came to know that, in the year 1999-2000, one M/s Birbhan and Company, joined the bid proceedings, for auction of liquor vends, pertaining to Gharaunda Group, wherein, it offered a bid of Rs. 5,55,51,653/-. It was stated that the aforesaid company had deposited a sum of Rs. 27,77,583/-, as 5% of the auction money. It was further stated that Birban son of Kundan Lal, resident of Dadupur, Ram Bilas son of Surajbhan, resident of Kinala, and Baru Ram son of Churia Ram, resident of Uchana, got their names mentioned, as partners of the company. It was further stated that the aforesaid company, did not run the liquor vends, as a result whereof, they were to be re-auctioned. It was further stated that owing to this, the defendants, had suffered a loss, to the tune of Rs. 1,23,45,300/-, and the same, was being sought to be recovered, from the plaintiff. It was further stated that the defendants, had also told the plaintiff, that he was being issued the summons, as there was no person, except him, in village Uchana, having the same name and parentage. It was further stated that the summons, issued to the RSA No. 3596 of 2007 3 plaintiff, were totally wrong, and, against the facts and law, as he had no concern with M/s Birbhan and Company, as also the liquor vends, pertaining to Gharaunda Group. The defendants, were many a time, asked not to recover the aforesaid amount, from the plaintiff, but to no avail. Ultimately, a suit for permanent injunction, was filed. 3. The defendants, put in appearance, and filed written statement, wherein, they took up various objections, and contested the suit. It was pleaded that the plaintiff, had suppressed the true facts, from the Court; that the plaintiff, had not come to the Court, with clean hands; that the suit, was bad, for want of notice under Section 80 of the Code of Civil Procedure; and that the Civil Court, had no jurisdiction, to try and entertain the suit. It was stated that the plaintiff alongwith other two partners namely Birbhan son of Kundan Lal and Rambir son of Suraj Bhan, had participated, in the auction of liquor vends of Gharaunda Group, for the year 1999-2000, and this fact, was verified, on the bid-sheet, signed in the presence of the Excise and Taxation Officer, who identified him. It was further stated that the aforesaid fact, was also strengthened by knock-down slip and the certificate of signatures, in the list of successful bidder. It was further stated that the plaintiff, alongwith other two partners, deposited a sum of Rs. 27,57,583/- i.e. 5% of the bid money, at the time of fall of hammer. It was further stated that the above facts, had also been proved, by the Sarpanch of village Durjanpur, who gave in writing, that Baru Ram, son of Churia Ram, belonged to village Durjanpur. It was further RSA No. 3596 of 2007 4 proved that the plaintiff, had been working as a liquor contractor. It was further stated that, though, at the time of auction, the plaintiff, had given his address of village Uchana, but, later on, after verification, it was found that, he belonged to village Durjanpur, and was the same person, who participated in the bid, with his two other partners. It was further stated that the proceedings, under the Punjab Land Revenue Act, 1890, were initiated, against Birbhan and Baru Ram, as a result whereof, the Collector, issued summons, for the attachment of the property of the plaintiff, for the recovery of Rs. 1,23,45,300/-, as arrears of land revenue. The remaining averments, were denied, being wrong. 4. On the pleadings of the parties, the following issues were struck:- (i) Whether the plaintiff is entitled for relief of injunction against the defendants as prayed for? OPP (ii) Whether the plaintiff has suppressed the true facts from the Court? OPD (iii) Whether the suit is bad for want of notice under Section 80 of CPC? OPD (iv) Relief. 5. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, dismissed the suit of the plaintiff. 6. Feeling aggrieved, an appeal was preferred, by the plaintiff/appellant, which was also dismissed, by the Court of RSA No. 3596 of 2007 5 Additional District Judge-II, Jind, vide judgment and decree dated 07.06.07. 7. Still feeling dissatisfied, the instant Regular Second Appeal, has been filed by the plaintiff/appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The following substantial questions of law, arise in this appeal, for the determination of this Court:- (i) Whether the Courts below, on complete misreading and misappreciation of evidence, recorded perverse findings, that Baru Ram, plaintiff/appellant, participated in the auction of liquor vends of Gharaunda Group, on the date fixed, as a partner of M/s Birbhan and Company, and offered a bid of Rs. 5,55,51,653/-, and deposited a sum of Rs. 27,77,583/-, as 5% of the auction money, alongwith other partners? (ii) Whether the Courts below, recorded perverse findings, on misreading and misappreciation of evidence, that the plaintiff/appellant, as one of the partners of M/s Birbhan and Company, was liable to pay a sum of Rs. 1,23,45,300/-, being the amount of loss, caused to the defendants/respondents, on account of re-auction of the liquor vends of Gharaunda Group? 10. The Counsel for the appellant, submitted that Baru Ram, was not a partner of M/s Birbhan and Company. He further submitted that no partnership deed, was produced, by the defendants/respondents, showing that Baru Ram, was a partner of the same, at the relevant time, RSA No. 3596 of 2007 6 when the auction of the liquor vends of Gharaunda Group, was held. He further submitted that Baru Ram, had no connection, whatsoever, in any manner, with the said firm. He further submitted that, even the photograph of Baru Ram, on the documents, which were allegedly prepared, at the time of holding the bid, was not found affixed. He further submitted that no cheque or draft, was got produced, by the defendants/respondents, showing that, it was Baru Ram, who signed the same, for making payment of 5% of the bid money. He further submitted that Baru Ram son of Churia Ram, resident of Durjanpur, the plaintiff/appellant, never signed any document, including the bid sheet and the knock down slips, at the time of the alleged auction of the liquor vend. He further submitted that, it was one Baru Ram son of Churia Ram, resident of village Uchana, who allegedly signed the aforesaid documents. He further submitted that the Courts below, on account of complete misreading and misappreciation of evidence, held that Baru Ram son of Churia Ram, resident of Durjanpur, Tehsil Narwana, was a partner of the firm namely M/s Birbhan and Company, and participated, in the auction of the liquor vends of Gharaunda Group, on 04.03.99, and, as such, was liable to make payment of the amount aforesaid, on account of the loss, caused to the defendants/respondents, due to re-auction of the liquor vends. He further submitted that the judgements and decrees of the Courts below, being illegal, were liable to be set aside. 11. On the other hand, the Counsel for the respondents, RSA No. 3596 of 2007 7 submitted that, it was Baru Ram, plaintiff, who was a partner of M/s Birbhan and Company, at the relevant time, who alongwith the other partners participated, in the auction of liquor vend of Gharaunda Group. She further submitted that firm M/s Birbhan and Company, of which, Baru Ram, plaintiff, was a partner, was the highest bidder and even deposited 5 % bid money, to the tune of Rs. 25,57,583/-. She further submitted that the signatures of Baru Ram, were obtained, on the documents, including the bid-sheet, as also the knock down slips, and the same, were identified, by the ETO, present, at that time. She further submitted that, Baru Ram, plaintiff, being one of the partners of the aforesaid firm, was, thus, liable to pay the amount, in question, which was calculated, as loss, caused to the defendants/respondents, on account of re-auction of the liquor vends aforesaid. She further submitted that the judgements and decrees of the Courts below, being legal and valid, were liable to be upheld. 12. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, the appeal is liable to be accepted, for the reasons to be recorded, hereinafter. As per the defendants/respondents, Baru Ram, plaintiff, was a partner of M/s Birbhan and Company, and, in that capacity, alongwith other partners of the aforesaid firm, participated in the auction of liquor vends of Gharaunda Group. No partnership deed, was produced, on the record, by the defendants, showing Baru Ram, plaintiff, resident of village Durjanpur, Tehsil Narwana, was a partner RSA No. 3596 of 2007 8 of firm M/s Birbhan and Company or was having any connection with the same. Baru Ram, plaintiff, when appeared, as PW1, in his statement, in clear-cut terms stated, that he was a resident of village Durjanpur. He further stated that he was not a resident of village Uchana. He further stated that he never remained a partner of M/s Birbhan and Company. He further stated that he never participated, in the bid, alongwith the other partners of M/s Birbhan and Company of liquor vends of Gharaunda Group. He further stated that he did not sign any document, at the time of the alleged bid. No document, was also produced, on the record, by the defendants, showing that, a particular cheque or draft, was signed by Baru Ram, plaintiff, as one of the partners of M/s Birbhan and Company, for deposing 5% bid money, at the time of fall of hammer. No photograph of Baru Ram, on any of the documents of bid, in his individual capacity, or as the alleged partner of M/s Birbhan and Company, was affixed. Phul Chand, ETO, DW1, in his examination-in-chief, stated that, Baru Ram, was a partner of the firm M/s Birbhan and Company. He further stated that he obtained the signatures of Bir Bhan, Ram Bir, and Baru Ram, on D4, copy of the certificate, duly identified by him. He further stated that, on knock down slip, copy whereof is D5, the name of Baru Ram son of Churia Ram, resident of Uchana, District Jind, alongwith the other partners of the said firm, was written. Bid statement is mark A. It does not bear the signatures of Baru Ram. D1, D2, and D3, are the photocopies of the STR forms, showing the deposit of various amounts. These documents, RSA No. 3596 of 2007 9 do not bear the signatures, in photo impression of Baru Ram, and other partners of M/s Birbhan and Company. During the course of his cross- examination, Phul Chand, DW1, who was statedly present at the time of bid, in clear-cut terms deposed, that he did not know Baru Ram and other partners of the firm M/s Birbhan and Company, personally. He further stated that he had no personal connection with Baru ram and other two partners. He further stated, during the course of his cross- examination, that he did not compare the signatures of Bir Bhan, Ram Bir and Baru Ram, with their signatures, on the alleged partnership deed. He appeared, in the Court, on 05.09.02 and 07.01.03, whereas, the auction, took place, in the year 1999. It could not be imagined, that a person, would be able to identify the person, after three or four years, who allegedly signed the documents, especially when, he did not know him personally or did not have any personal connection with him. Not only this, it was some Baru Ram son of Chiria Ram, resident of Uchana, who allegedly participated, in the auction, and signed the documents, referred to above. The plaintiff, in this case, is Baru Ram son of Churia Ram, resident of Durjanpur, Tehsil Narwana. Durjanpur and Uchana, are different villages, situated at a far-off distance, from each other. Phul Chand, DW1, stated that, he went to the house of Baru Ram, on 23.09.99, at Uchana, but he was not present there. He further stated that the Sarpanch, who took him, to the house of Baru Ram, stated that, he was a partner of M/s Birbhan and Company. The Sarpanch of the village, was not examined. It was, thus, not proved, RSA No. 3596 of 2007 10 that Baru Ram, plaintiff, resident of village Durjanpur, was the same person, whose name was recorded as Baru Ram son of Churia Ram, resident of Uchana and who allegedly participated, in the bid. If one Baru Ram son of Churia Ram, resident of Uchana, participated, in the bid, then the recovery, could be effected, from him, by the department concerned, for the loss, caused, and not from Baru Ram son of Churia Ram, resident of Durjanpur, plaintiff, in this case. The Courts below, were wrong, in coming to the conclusion, that Baru Ram son of Churia Ram, resident of Durjanpur, who is the plaintiff, gave his wrong address of village Uchana, at the time of participating, in the bid. The Courts below, recorded perverse findings, contrary to the evidence, that Baru Ram, plaintiff, was a partner of M/s Birbhan and Company, who participated, in the bid. The Courts below, were also wrong, in coming to the conclusion, on misreading of evidence, that the certificate of signatures and knock down slip bore the signatures of Baru Ram, plaintiff, especially when, from the report of the Forensic Science Laboratory, it was proved, that the questioned signatures, existing on the certificate and the knock down slips, were not comparable. The Courts below, apparently recorded perverse findings, on conjectures and surmises, that it was Baru Ram, plaintiff, who was a partner of M/s Birbhan and Company, and participated, in the auction alongwith other partners. The findings of the Courts below, on the aforesaid points, are perverse, on account of misreading of evidence, on record, and are liable to be set aside. RSA No. 3596 of 2007 11 13. No doubt, it was proved, from the evidence of Phul Chand, DW1, that since the Company, which participated, in the auction, did not deposit the remaining money, and, as such, the liquor vends, had to be re-auctioned, resulting into loss, in the sum of Rs. 1,23,45,300/-. The loss, which was caused, to the defendants/respondents, on account of re-auction of the liquor vends, could only be recovered, from the partnership firm, and the partners thereof, and not from a wrong person like the plaintiff/appellant, who was neither proved to be a partner thereof, nor did he participate, in the bid. The findings of the Courts below, to the contrary, being perverse, are liable to be set aside. 14. The substantial questions of law, depicted above, are answered, in favour of the appellant. 15. For the reasons recorded above, the appeal is accepted with costs. The judgements and decrees of the Courts below, are set aside. The suit of the plaintiff, for permanent injunction, restraining the defendants, from recovering the amount of Rs. 1,23,45,300/-, from him, as also from attaching his property and arresting him, for the recovery of the same, shall stand decreed. 20.10.2009 (SHAM SUNDER) Amodh JUDGE