IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.781 of 1986 Date of Decision: 14.9.2011 Ramesh Chand. ....... Appellant through Shri S.K. Jain, Advocate. Versus Municipality, Jind and another. ...... Respondents through Shri Dhawal Bhandari, Advocate. CORAM: HON'BLE MR.JUSTICE VIJENDER SINGH MALIK .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... VIJENDER SINGH MALIK,J. This is plaintiff's appeal against the judgment and decree dated 28.11.1985 passed by learned Additional District Judge (II), Jind vide which his appeal was partly accepted modifying the judgment and decree dated 11.3.1985 of learned Sub Judge Ist Class, Jind restraining the defendants from realising a sum of Rs.6007/- out of the balance amount of Rs.18400/- regarding the lease of the land in question for a period of two years i.e. from 16.4.1980 to 15.6.1982. The claim of the plaintiff in his suit for permanent injunction restraining the defendants from realising the amount of R.S.A.No.781 of 1986 -2- .... Rs.18400/- from him regarding the lease money of the land measuring 39 kanals 17 marlas situated in the revenue estate of Jind for the period from 16.6.1980 to 15.6.1982 is as under:- The defendants leased out the land measuring 39 kanals 17 marlas comprised in khewat no.189, khatoni no.235, rectangle no.198 as per the jamabandi for the year 1974-75 to the plaintiff for a period of two years w.e.f. 16.6.1980 to 15.6.1982 for a sum of Rs.31200/-. It was payable in four equal instalments of Rs.7800/-. The plaintiff paid a sum of Rs.12800/- on various dates. Out of the leased land, the plaintiff could not get possession of 3 kanals of land which was in illegal possession of some person for the last many years. The plaintiff had also taken the aforesaid land on lease for the period from 16.6.1978 to 15.6.1980 and at that time also, the possession delivered to him was of 36 kanals 17 marlas only. As the defendants did not deduct the proportionate lease money of 3 kanals, possession of which was not delivered to him, the plaintiff had to file suit no.146 of 1979 which was dismissed on 27.5.1980 by learned Sub Judge Ist Class, Jind. However, the appeal filed by him was accepted on 22.9.1981 by learned Additional District Judge, Jind who passed a decree in his favour and against the defendants restraining them from realising the lease money pertaining to 3 kanals area which came to Rs.2325/-. The defendants realised this amount also from the plaintiff on the promise that the same would be adjusted in future lease money for the years 1981 and 1982. For the period from 16.6.1980 to 15.6.1982, the aforesaid land was leased out to R.S.A.No.781 of 1986 -3- .... the plaintiff for a consideration of Rs.31200/-. The defendants were out to harm the plaintiff by adopting all illegal and arbitrary means. During the crop of kharif, 1981, the defendants through its employees knowingly got effected a breach in the khal carrying sullage water of Jind town. Resultantly, the land in question was flooded and was under knee deep water which remained there for six months. The standing crops along with 400 papaya plants were damaged. The plaintiff made representations to the defendants, as also to the then Minister for Local Self Government, Haryana State. The Minister passed verbal orders directing the defendants to give him relief of Rs.4000/-. The Minister had also directed the defendants to ascertain the approximate loss suffered by the plaintiff and adjust the loss in the lease money. The plaintiff had claimed Rs.30234/- which, according to him, became due to him as per the following table:- 1. Proportionate decrease of 3 kanals Rs.2340-00 area in the lease amount from 16.6.78 to 15.6.80. 2. Proportionate decrease of 3 kanals Rs.2394-00 area in the lease amount from 16.6.80 to 15.6.82. 3. Adhoc relief announced by the Rs.4000-00 Local Self Minister,Haryana. 4. Loss sustained by the plaintiff Rs.11500-00 for kharif crop 1981. 5. Loss sustained by the plaintiff as he Rs.10000-00 not cultivate crop Rabi,1982 in the land under lease on account of knee deep water remaining standing till end of April,82. R.S.A.No.781 of 1986 -4- .... The defendants did not decide the extent of the damage suffered by the plaintiff to his standing crop and, therefore, they are not entitled to recovery Rs.18400/-, the remaining lease money and rather he, after adjustment of this amount, is entitled to Rs.11834/- from them for which he reserved a right to file separate suit for recovery. Since the defendant started recovery proceedings by adopting coercive methods, hence, the suit. The defendants resisted the suit. They took some preliminary objections claiming that the suit is not maintainable as the amount is being realised as arrears of land revenue and the suit should have been filed for declaration and permanent injunction which has not been done. The suit was also claimed to be barred by the provisions of Order 2 Rule 2 of the C.P.C. as the relief claimed therein was available in the previous suit as well. Notice under section 52 of the Haryana Municipal Act,1973 was also claimed to have not been served by the plaintiff before filing the suit. The reply on merits is quite sketchy. After admitting the preliminary paragraphs, the contents of other paragraphs of the plaint are claimed to be wrong and denied. The only positive plea in the written statement is to the effect that an appeal had been filed by the plaintiff against the dismissal of his previous suit by learned Sub Judge Ist Class,Jind and that the same was accepted by learned Additional District Judge, Jind. It was averred that the acceptance of the appeal cannot be interpreted to mean that the plaintiff was held not liable to pay the whole amount of Rs.18400/-. R.S.A.No.781 of 1986 -5- .... Replication to the written statement was filed by the plaintiff. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled to the injunction, as prayed for?OPP 2. Whether the impugned amount is not due towards the plaintiff and the same is being recovered from him illegally, as alleged?OPP 3. Whether this suit is not maintainable in the present form, as alleged?OPD 4. Whether this suit is barred under order 2 rule 2 C.P.C.?OPD 5. Whether this suit is bad for want of a notice, as alleged?OPD 6. Relief. Taking evidence of the parties, learned trial court, vide judgment dated 11.3.1985, found the plaintiff entitled to adjustment of Rs.4734/- against the remaining lease money of Rs.18400/- and, therefore, the defendants were restrained from realising the said amount of Rs.4734/- from the remaining lease moiney of Rs.18400/- for the lease period from 16.6.1980 to 15.6.1982. The remaining relief was declined. The plaintiff filed an appeal against the aforesaid judgment. It may be mentioned here that the defendants had also filed an appeal. Vide judgment and decree dated 28.11.1985, learned first appellate court found learned trial court to be wrong in adjusting the amount of lease money of R.S.A.No.781 of 1986 -6- .... the area falling short by 3 kanals of the area given on lease to the plaintiff for the earlier period. However, learned first appellate court gave benefit of shortage in the area given on lease for the subsequent period in a sum of Rs.2394/- and found the plaintiff to be entitled to loss of his crop in a sum of Rs.3613/- and thus, held him entitled to Rs.6007/- and the defendants were held not entitled to realise this amount as lease money. Therefore, the decree of learned trial court was modified to the extent that the defendants were restrained from realising a sum of Rs.6007/- out of the balance lease money of Rs.18400/- for the lease period from 16.6.1980 to 15.6.1982. Still feeling dis-satisfied, the plaintiff has brought this appeal. I have heard Shri S.K. Jain, learned counsel for the appellant and Shri Dhawal Bhandari, learned counsel for the respondents. I have perused the record of the file. Learned counsel for the appellant has submitted that the shortage in the area leased out is not a disputed fact now. According to him, the appellant has been entitled to withhold the proportionate lease money for 3 kanals of land. He has submitted that the land taken on lease by the appellant remained under knee deep water on account of mischief played by the defendants through their employees by causing breach in the drain carrying sullage water of Jind town. According to him, the standing crops of the appellant were destroyed along with papaya plants and he could not even have the crop of Rabi, 1982. He has submitted that the proportionate amount of lease money which the appellant was entitled to withhold with R.S.A.No.781 of 1986 -7- .... regard to the previous lease period had been paid by him to the respondents on their promise that the same would be adjusted against the lease money for the years 1981 and 1982. According to him, that amount was not adjusted by the respondents. Learned counsel for the appellant has further submitted that on account of the land in question remaining under sullage water, Phool Singh, Patwari of the respondents had assessed the loss to the crops of the appellant. According to him, Phool Singh, Patwari while appearing as PW1, has stated that he had assessed Rs.11500/- as loss to the crops of the appellant for standing water. He has submitted that this amount was at least required to be deducted from the lease money. He has further submitted that learned first appellate court has though given concession to the appellant for the loss of crops, but the same has been given in a sum of Rs.3613/-. According to him, the method of calculation of learned first appellate court of the loss is fallacious. He has submitted that the loss suffered by the appellant and the amounts required to be adjusted are far higher than the amount of Rs.18400/- which is left to be paid by the appellant to the respondents. He has, therefore, submitted that the respondents are not entitled to effect recovery of Rs.18400/- from the appellant. Learned counsel for the respondents, on the other hand, has submitted that the assessment of loss to the appellant by the Minister, Local Self Government in a sum of Rs.4000/- is itself claimed by him to be oral. According to him, there was no such order in writing by the Minister R.S.A.No.781 of 1986 -8- .... and, therefore, the appellant is not entitled to any set off in the amount of the lease money on account of loss of crops. He has further submitted that the amount which learned first appellate court had held in the previous round of litigation to be not recoverable from the appellant by the respondents cannot be believed to have been paid by the appellant to the respondents on the alleged promise of adjustment of the same against the lease money of the second period of two years. He has submitted that the judgment of learned first appellate court suffers from no infirmity. Having considered the rival submissions, I am of the view that the following substantial question of law arises for determination in this appeal:- “Whether the judgments and decrees passed by learned courts below are perverse, based on misreading of evidence?” It is an unusual case where to every specific averment of the plaintiff-appellant, there is vague denial of the defendants-respondents. After submitting that learned first appellate court vide judgment dated 22.9.1981 accepted his appeal and restrained the respondents from realising the lease amount pertaining to 3 kanals, the appellant had specifically averred in paragraph 7 of the plaint that the amount of Rs.2325/-, lease money of 3 kanals of land for the lease period from 16.6.1978 to 15.6.1980 (wrongly mentioned as 16.6.80 to 15.6.80 in the plaint) was realised by the respondents from the appellant on the promise that this amount would be adjusted in the future lease money for the years 1981 and 1982. Coming to R.S.A.No.781 of 1986 -9- .... the corresponding paragraph in the written statement, there appears a simple denial mentioned as below:- “7. That para 7 of the plaint as stated is wrong and denied.” Similarly, in paragraph 10 of the plaint, regarding the auction of the land for the period from 16.6.1980 to 15.6.1982, the appellant has claimed that the respondents were still persisting in realising the entire amount without giving concession for 3 kanals area which was short delivered to him. It was specifically averred in paragraph 11 of the plaint that the respondents were out to harm him by adopting illegal and arbitrary means. It was claimed that during the crop of Kharif, 1981, the respondents through their employees got effected a breach in the khal carrying sullage water of Jind town on account of which the land in question remained under knee deep water for six months. In paragraph 12 of the plaint, the appellant had stated about the order of the Minister for Local Self Government for grant of ad hoc relief in the sum of Rs.4000/- to him. In paragraph 13, he had quantified the loss suffered by him in the sum of Rs.30234/- on account of acts of the respondents. The appellant claimed in subsequent paragraphs of the plaint that he was not liable to pay a sum of Rs.18400/- to the respondents. He also claimed that he was entitled to Rs.11834/- from the respondents for which he reserved a right to himself to recover the same by filing a separate suit. It is strange to note that to all these specific averments, reply is in the same manner as is the reply to paragraph 7 mentioned as above. Learned lower courts have ignored the provisions of R.S.A.No.781 of 1986 -10- .... Order 8 Rule 5 of the C.P.C. which require every allegation of the fact in the plaint to be denied specifically or by necessary implication or to be stated as not admitted in the pleadings and if it is not so done, the same shall be taken to be admitted. The only exception to this rule is in favour of a person under disability. The respondents can not claim this exception to be applicable to them. The vague denials made by the respondents in their written statement would amount to admission and a judgment could be pronounced on the basis of the same. However, it was not done by learned trial court or learned first appellate court. Learned trial court had taken into account the entitlement of the appellant for adjustment of the lease money of 3 kanals of land for the previous period. Learned lower appellate court has even rejected the same. The appellant had specifically alleged that the said amount was paid to the respondents on the promise that the same would be adjusted against the lease money of the years 1981 and 1982. The appellant has made an on oath statement in this regard while appearing in the witness box as PW3. No evidence has been led by the respondents to rebut the same. The only evidence of the respondents comes in the statement of Dalip Singh, Rent Clerk of Municipality, Jind, who has been examined as DW1. He does not say anything on this aspect. The appellant has stated appearing as PW3 that a breach in the khal was caused by the respondents which flooded the land in question destroying his crops There is neither a plea in the written statement to the R.S.A.No.781 of 1986 -11- .... effect that it was not an act of the respondents or their employees nor it is averred that it was an act of God on account of which the breach was caused. Not only the breach in the khal goes undenied, but the loss in the sum of Rs.11500/- was assessed by Phool Singh, Patwari, PW1, who is an employee of the respondents. Suresh Kumar is one of the other employees of the respondents. He has been examined as PW2. He was holding the office of Land Officer. He has admitted that the appellant made an application to Shri Mange Ram Gupta, Local Self Government Minister in connection with the loss of his crop and the Minister had announced a relief of Rs.4000/- to him orally. This further proves the case of the appellant. However, this amount would have been towards the loss which was assessed by Phool Singh, Patwari in the sum of Rs.11500/- and the appellant would be entitled to deduct an amount of Rs.11500/- from the lease money on account of loss suffered by him due to acts of the respondents. Though, the appellant has claimed loss of crop of Rabi,1982 as he could not sow the same on account of standing water, yet, there is no evidence to support it from Phool Singh, Patwari, PW1 or any other concerned official. Therefore, the loss suffered by the appellant is in a sum of Rs.11500/-. He is also entitled to adjust the amount of Rs.2325/-, the lease money of 3 kanals of land which he paid under a promise of the respondents of adjustment in the future lease money. The other amount which he is entitled to adjust is Rs.2394/-, the lease money for the short delivered land of 3 kanals for the period from 16.6.1980 to 15.6.1982. R.S.A.No.781 of 1986 -12- .... In view of the aforesaid discussion, learned courts below appear to have based their findings on misreading of evidence. The question of law is accordingly answered. The appeal is consequently partly accepted. The judgment and decree of learned first appellate court is modified to the extent that the appellant is held entitled to adjustment of a total sum of Rs.16219/- (Rs.2325/- + Rs.2394/- + Rs.11500/-) towards the balance lease money of Rs.18400/- and the respondents are restrained from recovering this amount from him. September 14,2011 ( VIJENDER SINGH MALIK) “SCM” JUDGE