IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1232 of 1986 Date of decision: 26.3.2009 Haryana State Electricity Board ......Appellant Versus Jagdish Rai and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. S.K. Jain, Advocate for the appellant. * * * Rakesh Kumar Garg, J.(Oral) This is defendant's second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for recovery of Rs.9300/- by way of compensation was decreed with costs. Briefly stated, the case of the plaintiff (respondent herein) was that he was consumer of the appellant. On 16.2.1978, there was a hail storm and heavy rain which resulted into break-down of his power connection. He accordingly, registered a complaint. But the officers of the defendant-Department (appellant herein) insisted for depositing the costs for repair and restoration of the electricity supply. However, the plaintiff declined to accept the aforesaid demand allegedly being wrongful. The defendants removed the power and the light meter from the premises of the plaintiff and told that unless consumption payment guarantee was furnished, the supply would not be restored. The plaintiff brought the suit for mandatory injunction directing the defendants to restore the meter and supply of the electricity without any payment and further for a decree for loss to the plaintiff. The said suit was decreed by Sh.K.C. Dang, Sub Judge 1st Class, Rohtak on 30.11.1981. As a consequence of the decree, the supply of the meter was restored. It is the case of the plaintiff that his claim for compensation for loss upto 30.11.1981 stands decreed but he was also entitled to claim compensation at the token rate of Rs.300/- P.M. from 10.6.1978 till 31.3.1982 when his meter was unlawfully removed earlier and later on restored. On the aforesaid facts, the plaintiff-respondent filed the present suit for recovery The suit was contested by the appellants. Break down of the electricity supply was not disputed. Earlier litigation was also not disputed. However, it was maintained that the plaintiff-respondent was liable to pay the costs of the alleged burnt meter etc. All other material averments were denied and the dismissal of the suit was prayed for. Parties to the suit led evidence. The trial Court after perusing the evidence and hearing learned counsel for the parties, decreed the suit of the plaintiff-respondent. Appeal filed by the defendant before the Lower Appellate Court was partly accepted and damages to the tune of Rs.9,300/- for a period of 31 months were allowed. Interest was also waived off. Still not satisfied, the appellant has filed the present appeal. Challenging the aforesaid judgment and decrees of the Courts below, learned counsel for the appellant has vehemently argued that the present suit filed by the plaintiff-respondent was hit by provisions of Order 2 rule 2 CPC as the plaintiff had failed to claim the whole relief which was available to him when he had filed the earlier suit and thus, the following substantial question of law arises in this appeal: “Whether the present suit filed by the plaintiff- respondent is hit by Order 2 rule 2 CPC?” I have heard learned counsel for the appellant. The contention raised by the learned counsel for the appellant is misconceived. A perusal of the record shows that no such plea was raised by the appellant before the Courts below. Even, no issue was claimed by the appellant in this regard. In view of the authoritative judgment of the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal and another JT 2008 (13) SC 255, the appellant is estopped from raising this plea for the first time in regular second appeal. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. March 26, 2009 (RAKESH KUMAR GARG) ps JUDGE Respondent No.1 filed a suit for possession by way of specific performance of the agreement to sell dated 23.5.1990 executed by defendants No.1 and 2 (Smt. .. defendant No.1 since deceased is being represented by defendant No.2 Smt. Suresh Kumari now respondent No.2) alleging that defendant Nos.1 and 2 agreed jointly to sell the suit property vide a written agreement which was executed on 23.5.1990 in favour of the plaintiff after receiving a sum of Rs.1,25,000/- in cash by way of earnest money and further agreeing to get the sale deed to be executed and registered upto 23.1.-- balance sale consideration was agreed to be paid at the time of registration of the sale deed. Defendants No.1 and 2 had further undertaken to – Income Tax Clearance Certificate before the date fixed for registration of the sale deed now agreement. It was further averred that on the same day i.e. 23.5.1990 defendants No.1 and 2 also executed and got registered a general power of attorney in respect of the aforesaid properties in favour of the plaintiff and authorised him to deal with the property and upto all acts on their behalf by virtue of this document. Actual physical possession of the suit property was also delivered to him. The plaintiff being General Power of Attorney in respect of the suit land on behalf of defendants No.1 and 2 got executed and registered a sale deed in respect of 1/10 share in the land in favour of defendants No.5 to 7 now respondents No.3 to 5. Vide registered sale deed dated 28.5.1990 for a consideration of Rs.1,80,000/- and the aforesaid amount was received by defendants No.1 and 2 from the plaintiff vide receipt Ex.PW5/1 duly executed and thumb marked by them as additional payment towards the sale consideration and after payment the aforesaid sum of Rs.1,80,000/-, the plaintiff was left with the liability to pay the balance sale consideration of Rs.5,20,000/- to defendants No.1 and 2 for execution and registration of the sale deed in respect of the remaining property. It was further averred that the plaintiff remained always ready and willing to get the sale deed effected in his favour in respect of the suit land but the defendants No.1 and 2 came under the influence of defendants No.3 and 4 (now appellants) who were real nephew and brother of Shiv Lal deceased the husband of defendant No.1 and father of defendant No.2 and at their instigation, defendants No.1 and 2 illegally got a notice issued to the plaintiff dated 1.6.1990 informing him that the General Power of Attorney dated 23.5.1990 in his favour has been got cancelled by them and asked the plaintiff not to effect any deal in respect of the property remained to be sold in favour of the plaintiff by virtue of sale agreement dated 23.5.1990. Defendants No.1 and 2 also got effected two registered lease deeds for a period of 90 years each in favour of defendant No.3 on 2.6.1990 one in respect of the remaining land whereby – for a fictitious amount – and second in respect of the land – Dhuri for a fictitious sum of Rs.10,000/- This action of defendants No.1 and 2 was in breach of sale agreement on their part. Defendant No.3 had full knowledge and notice of the above agreement dated 23.5.1990 in favour of the plaintiff. It is averred that the plaintiff also came to know that after creating the lease deeds in respect of the suit land in favour of defendant No.3 defendants No.1 and 2 also effected a registered sale deed in respect of the whole remaining agricultural land in favour of defendant No.4 vide sale deed dated 17.8.1990 even without – the ITCC for a fictitious sale consideration of Rs.9,20,000/- and further committed a breach of the sale agreement in question. The aforesaid sale in favour of defendant No.4 was illegal and without any authority on the part of defendants No.1 and 2 and was not binding on the plaintiff. Defendant No.4 was also having the full knowledge and notice of the sale agreement in respect of the suit land in favour of the plaintiff being real brother of Shiv Lal deceased husband of defendant No.1. The plaintiff remained ready and willing to perform his part of the sale agreement and was still ready and willing to perform the same and he had ready many at all the relevant times of the sale deed effected in terms of the sale agreement dated 23.5.1990. page 42 a to a It was also averred that during the pendency of this suit land measuring 10 bigha 10 biswas – was acquired by the State Government vide award No.2 dated 3.5.2000 pronounced by Lower Appellate Court, Gurgaon and on account of this subsequent event, the plaintiff was entitled to a decree for possession by performance of sale agreement in respect of the remaining land and also entitled to receive the compensation for acquisition. Upon notice, defendants No.5 to 7 were proceeded against ex parte. Defendants No.1 and 2 filed written statement raising various preliminary objections. On merits, it was admitted that defendants No.1, 2 and 3 owner in possession of the suit property but execution of the agreement to sell was denied. It was pleaded that execution of agreement to sell, the suit property was acquired by playing fraud and misrepresentation with defendants no.1 and 2. There was a family dispute between the defendants No.1 to 4. Defendants No.3 and 4 wanted to purchase the land in question from defendants No.1 and 2 who were under impression that defendants No.3 and 4 may grab their sale consideration if the suit land is sold to defend b ti b 44 and 45. Delivering of physical possession to the plaintiff was denied. It was further stated that defendants No.1 and 2 have cancelled the attorney on 1.6.1990 vide registered cancellation deed. Execution of receipt of Rs.1,80,000/- of 28.5.1990 was denied and it was alleged that the same is false and fabricated. Since defendants No.1 and 2 realized that they had been cheated by the plaintiff by fraudulent misrepresentation they had cancelled the alleged attorney. It was prayed that the suit be dismissed. Defendants No.3 and 4 contested the suit and filed written statement controverted the averments of the plaintiff. They also raised various preliminary objections. It was further pleaded that defendants No.1 and 2 executed an agreement to sell in favour of defendant No.4 on 11.4.1990 for a consideration of Rs.11,00,000/- and received a sum of Rs.2,00,000/- as earnest money. The sale deed was to be executed on or before 15.9.1990. The plaintiff had misrepresented defendants No.1 and 2 and believing his representation defendant – had agreed to thum mark the attorney in his favour. Subsequently transpired that intention of the plaintiff was not bona fide and he wanted to obtain wrongful gain to the – defendant No.4. C to c page 47 to 49 All other material allegations were denied and it was prayed that the suit of the plaintiff had dismissed. 27.3.09 This is plaintiff's second appeal challenging the judgment and decrees of the Courts below whereby his suit for recovery of Rs.1,50,000/- with future interest at the rate of 18% per annum on account of damages for the injury caused to him by the respondents was dismissed and counter claim filed by respondents No.5 and 6 for recovery of Rs.11,042/- with proportionate cost on account of damages caused to tractor was decreed against him. As per the averments made in the plaint, there was a litigation between the parties and due to this, the respondents hatched a conspiracy against the family members of the appellants in pursuance of which on 18.6.1994, the respondents armed with weapons came in drunkard condition and climbed up a roof top and a fight took place. FIR No.119 dated 19.6.1994 was lodged with P.S Samana against the respondents. Due to this fight, the appellants received gun shot in his left eye and because of that suffered permanent disability which was more than 65% as the appellant had gone completely blind from left eye. After initial treatment the appellant was referred to Rajindra Hospital, Patiala where he remained admitted for many days. Thereafter, the appellant was taken to many eye hospitals and he incurred expenses on his travelling etc. Thus, on account of these injuries the appellant claimed Rs.1,50,000/- on account of loss to the earnings and his earning capacity etc. and on account of expenses incurred on travelling and treatment. The suit was contested by the respondents stating that they were not responsible for causing any injury to the appellant. It was further submitted that the appellant was an able bodied person who had suffered no disability and nor he suffered in his earning capacity and as such they were not liable to pay any compensation amount. Respondents No.5 and 6 also put-forth a counter claim that they were owners of ---tractor in question which was set on fire by the appellant which caused loss a sum of Rs.75,000/- to them and as such they are entitled to recover the aforesaid amount with interest at the rate of 18% per annum from the appellant. In the replication filed, averments made in the plaint were reiterated and those of the written statements were denied. After conclusion of evidence by the parties and hearing the arguments, the trial Court dismissed the suit of the appellant but decreed counter claim of the respondents as aforesaid. Feeling aggrieved against the impugned judgment and decree, the appellant preferred an appeal before the Lower Appellate Court. Along with this appeal, the appellant also filed an application under Order 41 rule 27 CPC for allowing him to lead additional evidence by examining a serving doctor of Rajindra Hospital so that disability of his left ey may be determined. It was claimed that earlier Dr.Navdeep Singh was called but he submitted during trial that record in Rajindra Hospital was not available qua his treatment due to the destruction of that record and as such it was averred that interest of justice demands that the appellant should be examined from a doctor of Rajindra Hospital, Patiala. The aforesaid application was dismissed by the Lower Appellate Court observing that it was for the appellant to establish that the injury of his left eye was direct result of firing done by the respondents and it was for him to prove his case by producing relevant evidence. It was also observed that the additional evidence sought to be produced at this stage had thrown any light --- real controversy as to how the loss of vision of left eye actual sustained by the appellant. It was further observed that the evidence sought to be produced by way of additional evidence was at this belated stage was within knowledge of the appellant at the time of leading evidence by him in the trial Court and it was not the case of the appellant that the evidence now sought to be adduced by way of additional evidence was not within his knowledge at the time of leading evidence in the trial Court or that it could not be produced earlier despite exercise of due diligence those application for additional evidence filed by the appellant was rejected by the Lower Appellate Court. On merits also, the Lower Appellate Court on appreciation of evidence upheld the findings of the trial Court and dismissed the appeal filed by the appellant. Still not satisfied, the appellant has filed the present appeal challenging the aforesaid judgment and decrees of the Courts below. Challenging the judgment and decrees of the Courts below, learned counsel for the appellant has vehemently argued that this application for additional evidence has been rejected illegally by the Lower Appellate Court as the appellant had exercised due diligence in proving his case and there was no fault on his part as he had summoned Dr. Navdeep Singh from Rajindra Hospital to prove the extent of injuries caused to his left ey. However, the aforesaid witness who clearly stated that relevant record was not available due to destruction of the same and thus, no adverse inference could be drawn against the appellant and the appellant should have been allowed an opportunity to lead additional evidence by examining him from a doctor of Rajindra Hospital. Learned counsel has also challenged the findings of the courts below decreeing the counter claim against him on the ground that the same is not proved from the record and has prayed for acceptance of this appeal and set aside the judgment and decrees of the Courts below with further prayer for decreeing his suit as prayed and dismissal of the counter claim of the respondents.