IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 507 of 2000. Decided on : 15.11.2010. ____________________________________________________________ M.D. H.P.M.C & another …Appellants. Versus Joginder Partap Singh ….Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the Appellants : Mr. Shrawan Dogra, Advocate with Mr. Umesh Kanwar, Advocate. For the Respondent : Mr. Ajay Kumar, Advocate. Kuldip Singh , Judge (Oral ). This appeal has been directed against the judgment, decree dated 1.7.2000 passed by the learned District Judge, Shimla in Civil Appeal No. 143-S/13 of 1998 reversing judgment, decree dated 30.6.1998 passed by the learned Sub Judge (1), Rohroo in Civil Suit No. 113-1 of 1991. 2. The facts, in brief, are that the respondent had filed a suit for recovery of ` 1,21,876/- on the averments that during the apple season of 1989 he was entrusted the job of unloading, stacking, loading of apple bags of culled fruits at the collection centres at Dhamwari, Tikkari, Chirgaon, Badyara and Rohru. The respondent was entitled to handling charges Rs. 3/- per bag as per the quotation submitted by him and accepted by the appellants. The respondent was also entitled to another sum of ` 2/- per bag for destruction of the damaged fruit. The respondent 1 Whether reporters of Local Papers may be allowed to see the Judgment ? .yes 2 handled number of bags at the collection centres referred above as per the rate agreed. He was entitled to a sum of ` 2,05,278/- on account of handling charges. The appellants had paid him ` 1,22,453/- and with held the payment of the remaining amount of ` 82,824/-. The respondent had destroyed 7616 apple bags and for that job he was entitled to ` 15,232/-. The respondent had issued notice to the appellants but to no effect, hence the suit was filed in which an amount of ` 23,520/- has been claimed as interest from 29.11.1989 to 29.10.1991. A sum of ` 300/- has been claimed on account of costs of the notice. The respondent has claimed total amount of ` 1,21,876/- from the appellants alongwith future interest at the rate of 12% per annum. 3. The suit was contested by the appellants by filing written statement in which objections of maintainability and locus standi have been taken. On merits, it has been submitted that an amount of ` 82,824/- was with-held as cost of 493 apple bags which were found short. The respondent was not entitled to any amount on account of destruction of apples. There was no contract between the parties for payment of any amount to respondent for destruction of apples. The appellants have prayed for dismissal of the suit. 4. The replication was filed in which respondent has reiterated his stand and denied the case set up by the appellants. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff was entrusted with the work of loading, unloading & destroying bundling of empty bags of cull fruits at the rate of Rs.2/- per bag, as alleged? OPP 2. Whether the plaintiff is entitled to the suit amount, as claimed? OPP 3. Whether the suit is not maintainable in the present form, as alleged? OPD 4. Relief. 3 The issues Nos. 1 to 3 were answered in negative and the suit was dismissed by the learned trial Court on 30.6.1998. In appeal filed by the respondent herein, the learned District Judge on 1.7.2000 has held that respondent is entitled to a sum of ` 1,21,576/- with costs of the suit as also of the appeal alongwith future interest at the rate of 12 % per annum from the date of filing of the suit i.e. 30.9.1991 till realisation of the decretal amount. In these circumstances, 2nd appeal has been filed which has been admitted on the following substantial question of law:- Whether the first appellate Court is right in setting aside well reasoned decree and judgment of the trial court by relying upon allegedly inadmissible documents Ex.PJ and mark ‘X’ and by mis-reading and mis-appreciating documents Exts. DW-1/A, 1/B and 1/C produced and proved by the appellants- defendants ? 5. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted on behalf of the appellants that the learned lower Appellate Court has erred in relying inadmissible documents Ex.PJ and mark ‘X’ in decreeing the suit of the respondent. It has been submitted that documents Ex.DW-1/A, Ex.DW-1/B and Ex.DW- 1/C have been mis-read and mis-appreciated by the learned lower Appellate Court. The learned counsel for the appellants has prayed for setting aside the impugned judgment, decree and restoration of the judgment and decree passed by the learned trial Court. The learned counsel for the respondent has submitted that the learned lower Appellate Court has properly appreciated the material documents and after due appreciation of material on record has recorded a finding of fact in favour of the respondent while decreeing the suit of the respondent for a sum of ` 1,21,576/- along with interest. It has been submitted that no fault can be 4 found with the impugned judgment and decree passed by the learned lower Appellate Court. 6. The defence of the appellants is that respondent had unloaded, stacked and loaded 68426/- bags and was entitled to a sum of ` 2,05,278/- at the rate of ` 3/- per bag. There was shortage of 493 bags; 273 bags at Chirgaon and 220 bags at Badiara. The respondent and Krishan Sain Chauhan, Incharge of Procurement Centres were responsible for such shortage. The value of bags, which were found short was ` 82,834/- and this amount had been deducted from the amount which was payable to the respondent on account of labour charges. The job of destruction of the bags of culled fruit was not given to respondent, therefore, he is not entitled to an amount of ` 15,232/- on that account. 7. Ex.PJ is the letter written by Krishan Sain Chauhan addressed to the Regional Manager of appellant No.1. In Ex.PJ alleged shortage of 273 bags from Chirgaon centre has been explained. Mark ‘X’ is the photocopy of letter dated 22.6.1990 of Financial Advisor addressed to Regional Manager, HPMC. Ex.DW- 1/A is the certificate with respect to shortage of 220 bags and Ex.DW- 1/B is the certificate of shortage of 273 bags. Ex.DW-1/C is the letter dated 12.7.1989 of the Managing Director addressed to various addressees incorporating the instructions of procurement of apples during the year 1989-90 under “Support price Scheme”. The appellants have failed to point out from record that there was any agreement between the respondent and the appellants that in case of shortage of apples deduction would be made from the money due to him on account of labour charges. It is admitted case of the 5 appellants that respondent was entitled to ` 2,05,278/- but on account of shortage of 493/- bags an amount of ` 82,824/- was deducted from the due amount of respondent and only an amount of ` 1,22,454/- was paid to respondent. The appellants have also failed to establish that respondent was under obligation to take care of apple bags after unloading, stacking and loading apple bags. In these circumstances, it was the duty of the appellants to look after the apple bags and shortage, if any, of the apple bags cannot be attributed to the respondent. 8. According to Ex.DW-1/A and Ex.DW-1/B, 2593 and 1689 apple bags were destroyed. Thus, in all, the respondent has destroyed 7616 apple bags. It is not the case of the appellants that the destruction of apple bags was to be done by the respondent free of costs or gratuitously. The respondent has claimed destruction cost at the rate of ` 2/- per bag. The appellants are disputing payment of destruction cost of apple bags to respondent on the ground that there was no such agreement to pay any amount to respondent for doing the job of destruction of apple bags. It is not the case of the appellants that ` 2/- as claimed by respondent for destruction of apple bag is on the higher side. The learned lower Appellate Court has allowed ` 2/- per bag to respondent for destruction of 7616 apple bags and total amount of ` 15,232/- for this purpose has been allowed. The interest allowed by learned lower Appellate Court to the respondent is also not on the higher side. The learned lower Appellate Court after due appreciation of evidence on record recorded a finding of fact which emerges from the material on record. In 2nd 6 appeal re-appreciation of evidence is not permissible. It cannot be said that the learned lower Appellate Court has mis-construed, mis- appreciated Ex.DW-1/A, Ex.DW-1/B and Ex.DW-1/C. The document Ex.PJ has been disputed only on the ground of admissibility by the appellants but it is not the stand of the appellants that Ex.PJ is not internal communication of the appellants nor it is the stand of the appellants that contents of Ex.PJ are false. In these circumstances, the appellants cannot derive any benefit from Ex.PJ. 9. The result of the above discussion, there is no merit in the appeal. The substantial question of law is decided against the appellants and the appeal is dismissed with no order as to costs. ( Kuldip Singh), November 15, 2010. Judge. (GR)