IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 371 of 1999. Reserved on :23.3.2009 Decided on: 26.3.2009. Union of India …Appellant. Versus Nirmal Rani Kochhar ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No. For the Appellant : Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent : Mr. G.C.Gupta, Sr. Advocate with Ms. Ambika Kotwal, Advocate. Kuldip Singh , Judge This appeal has been directed against the judgment, decree dated 12.3.1999 passed by the learned Additional District Judge, Shimla in Civil Appeal No. 104/S/13 of 1995 affirming judgment, decree dated 23.12.1993 passed by the learned Sub Judge 1st Class (3), Shimla in case No.110/1 of 1991. 2. The appellant was plaintiff in the suit for recovery of Rs. 64,209.20 which was filed against the respondent/defendant. The case of the appellant is that tender of respondent for supply of fire wood common and fire wood split to Military School, Chail was accepted. The fire wood common and fire wood split were to be supplied by the respondent at the rate of Rs. 70/- and Rs.73/- respectively in the event the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .Yes. stack yard of the respondent was situated within a radius of 7 kilometers from Military School, Chail and at the rate of Rs.83/- and Rs.93/- if the stack yard was situated in the radius of 7 K.M. to 13 K.M. 3. The respondent represented that she supplied fire wood to Military School, Chail from a place beyond the radius of 7 kilometers. The period of contract was from 1.4.1987 to 31.3.1988. The respondent claimed the amount from the appellant on the basis of false bills and the entire amount was released to the respondent as such along with security. 4. In February, 1989, the Military School, Chail brought to the notice of J.M.Sood, Commandant, Army Supply Depot, Jutogh that respondent had submitted false claim by representing the distance of stack- yard beyond 7 kilometers whereas the respondent supplied fire wood to appellant within 7 kilometers. On receiving this information, PW-2 J.M.Sood, went to Chail and investigated the matter on the spot. On physical verification, he did not find any stack-yard of respondent beyond 7 kilometers, he rather found that respondent supplied fire wood to Military School, Chail from a place situated within 2 – 3 kilometers. PW-2 took the matter with the Area Headquarter to effect recovery from the respondent. The Area Headquarter directed the Headquarter Depot Ambala to effect recovery from the respondent. In compliance to such decision, the money payable to the respondent for execution of some other work was with-held. The respondent filed a suit for permanent prohibitory injunction against the appellant and in that suit, the trial Court had passed temporary injunction directing the appellant not to with-held the amount payable to the respondent. The matter came in this Court by way of Civil Revision No.18 of 1990 which was decided on 6.6.1990. The parties complied the directions of this Court and payment was released to the respondent. Thereafter, suit for recovery of Rs. 64,209.20 was filed by the appellant. The case of the appellant against the respondent, in brief, is that the suit amount was paid by the appellant to respondent on false representation and, therefore, respondent is liable to pay back the suit amount to the appellant. 5. The respondent contested the suit by filing written statement and took preliminary objections of maintainability, cause of action and competency of C.R.Chauhan to file and maintain the suit, mis-joinder of parties, limitation, there is an arbitration clause, the suit is not maintainable in view of financial rule 186. After release of the security amount of the respondent, the case is finally closed and appellant is estopped from filing the suit. On merits, the respondent denied the claim of the appellant. It has been alleged that no amount is payable by respondent to appellant. The jurisdiction of the Court to try the suit was also denied. The appellant filed replication and reiterated the stand and denied the defence of the respondent. The learned trial Court had framed the following issues:- 1. Whether the defendant has received over payment of Rs.64,209/- as alleged? ..OPP. 2. Whether the suit has been filed by competent person? ..OPP. 3. Whether the suit is within time? …OPP. 4. Whether the suit is not competent and maintainable? ..OPD. 5. Whether the suit is bad for misjoinder of parties? ..OPD. 6. Whether the plaintiff has no locus standi to file the suit? ...OPD. 7. Relief. The issues No.1, 4, 5 & 6 were answered in negative and issues No. 2 and 3 in affirmative. The trial Court dismissed the suit on 23.12.1993. In appeal, the learned lower Appellate Court on 12.3.1999 affirmed the decision of the trial Court. 6. The appeal has been admitted on the following substantial questions of law:- 1. Whether the Courts below mis-construed the contract agreement marked as Ex.D-3 and also mis-applied and mis-construed the relevant provisions contained in the Financial Regulations, the abstract of which has been marked as Ex.D-7 in rejecting the suit claim? 2. Whether the Courts below mis-construed and mis- directed themselves to the oral evidence on record in rejecting the claim of the plaintiff / appellant? 7. I have heard Mr. Sandeep Sharma, Assistant Solicitor General of India, learned counsel for the appellant and Mr. G.C.Gupta, Senior Advocate, learned counsel for the respondent and have also gone through the records. Mr. Sharma has submitted that two Courts below have mis-construed and mis-interpreted the material on record more particularly Ex.D-3 and Ex. D-7. He has also submitted that the Courts below have mis-construed and mis-directed themselves in rejecting the claim of the appellant. Mr. Gupta, learned Senior Advocate on behalf of the respondent has submitted that two Courts below have concurrently recorded a finding of fact against the appellant. There is no substantial question of law involved in the appeal. He has supported the impugned judgment, decree. Substantial questions of law No.1 & 2: 8. The brief case of the appellant is that respondent had supplied fire wood to Military School, Chail from a distance which was less than 7 kilometers from the school but the respondent had falsely claimed that the supply was made from a distance located between 7 kilometers to 13 kilometers. The grievance of the appellant is that various payments made to the respondent for supplying fire wood were based upon false representation and therefore, excess payment was made to the respondent and appellant is entitled to recover the excess payment made to respondent and for recovery of that amount, the suit was filed. Ex.D-3 is with respect to Special Conditions: Firewood which is as follows:- “CONDITION NO.50. I/We agree that the government under-taking have no liability to provide the land or Government building for the purpose. If however Govt. land is available and is hired out to me/us for use as Firewood stackyard, I/We agree to pay to the Government regularly by 5th of each month in advance the rent and allied charges as assessed by the Military Engineering Services (MES).” Ex.D-3 in no way supports the case of the appellant inasmuch as, Ex.D-3 has nothing to do with the controversy between the parties. The condition No.50 relates to payment of advance rent in case Government land is used for stacking fire wood. Similarly, Ex. D-7 is with respect to Rule 186 (b) of Financial Regulations Part-I and is to the following effect:- “Rule 186 sub para (b). When Erroneous payments have been left unchallenged owing to oversight, the audit office should not on its own initiative undertake a re-audit of bills paid more than 12 months previously but should report the facts of the case to the Competent Financial Authority for order and a re- audit shall be taken only if the Competent Financial Authority so desire.” Ex.D-7 again is not of any help to the appellant in the present controversy. In the suit, the appellant has taken the stand that the stack-yard of the respondent was situated within 7 kilometers from the Military School, Chail whereas the payment was claimed by the respondent by representing that the fire wood was supplied to Military School, Chail from stack-yard which was situated between 7 kilometers to 13 kilometers from Military School, Chail. The appellant was required to prove that supply was made from within 7 KM and, in these circumstances, Ex.D-7 is also not relevant. In fact substantial question of law No.1 does not emerge from the ultimate controversy between the parties, hence substantial question of law No.1 is decided against the appellant. 9. The learned Counsel for the appellant has submitted that the learned Courts below have mis-construed oral evidence on record in rejecting the claim of the appellant. PW-1 C.R.Chauhan has stated that he commanded the supply depot from October 1989 to January, 1992. In cross-examination, he has admitted that during the contract period, he was not posted at the relevant place. He has shown his ignorance that on the bills of supply it was mentioned that the supply was made beyond 7 kilometers and on that basis, the payments were made. 10. PW-2 J.M. Sood, has stated that from September, 1987 to October, 1989 he remained posted as Commanding Officer, Jutogh. He has stated that the respondent had submitted bills Ex.PW-2/A to Ex.PW- 2/M. Chail school told him that the supplies were made by the respondent from within 7 kilometers vide Ex.PW-2/N. He and Colonel S.C.Sharma, had gone to Military School, Chail for conducting physical verification and found that the respondent had supplied fire wood from within 2 to 3 kilometers. In cross-examination he has stated that respondent had made supply between 7 to 13 kilometers. He has also stated that on the top of the bills submitted by the respondent, it was mentioned “delivery beyond 7 kilometers”. 11. Om Parkash, attorney of respondent has stated that respondent had supplied the fire wood from Kohbagh which is situated at a distance of 9 – 10 kilometers. DW-2 Roshan Lal has also stated that Nirmal Rani Kochhar had stack-yard at Kohbagh which is at a distance of 10 kilometers from Chail. PW-2 has not named the place where stack-yard of the respondent was found, Colonel S.C. Sharma has not been examined. It is quite reasonable to infer that when PW-2 J.M.Sood allegedly verified the position, he must have prepared some report / note but he has not placed such document on record. It has come in the evidence of respondent that the fire wood was supplied to Military School, Chail from Kohbagh which is situated at a distance in between 7 to 13 kilometers from Military School, Chail. The respondent had submitted bills for payment and on the top of those bills, it was mentioned that the supply was made beyond 7 kilometers. Therefore, appellant made the payment to the respondent. 12. The two Courts below have recorded a finding of fact that the supply was made by the respondent of fire wood to Military School, Chail from stack-yard which was located beyond 7 kilometers. In second appeal the evidence cannot be re-appreciated. The learned counsel for the appellant has failed to make out a case of mis-construction of oral evidence or even documentary evidence by two Courts below and, therefore, substantial question of law No.2 is decided against the appellant. 13. No other point was urged. 14. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ), Judge. March 26, 2009.(GR)