1. The present regular second appeal has been maintained by the appellant, who was defendant before the learned Trial Court (hereafter referred to as "the defendant"), assailing the judgment and decree, dated 01.11.2004, of the learned District Judge, Hamirpur, H.P. passed in Civil Appeal No. 108 of 2002, whereby the judgment and decree, dated 04.09.2002, passed by learned Civil Judge (Junior Division), Barsar, District Hamirpur, H.P., passed in Civil Suit No. RBT 1998/97, was upheld.
2. The key facts, which are necessary for determination and adjudication of the present appeal, are that the respondent/plaintiff (hereinafter referred to as "the plaintiff") is a body incorporated under the Companies Act, owned and controlled by State of Himachal Pradesh and is having its Division Office at Hamirpur, which deals with the extraction of resin, as well as other activities relating to the forest produce. As per the plaintiff, the Divisional Manager of the Corporation is competent to institute a suit on behalf of the plaintiff. The case of the plaintiff is that on 5th March, 1994, the defendant entered into an agreement with the plaintiff, through its Divisional Manager, Forest working Division, Hamirpur, for extracting the resin of lot No. 3/R/94. As per the said agreement, the defendant was given the contract to extract the resin from 4500 blazes @ Rs. 321/- per quintal. The minimum quantity of net pure resin which was to be collected by the defendant per one thousand blazes was 42 quintals. Thus, the defendant was required to extract 189 quintals of pure resin and deposit the same in the resin depot at Bara. However, as per the terms and conditions of the agreement dated 05.03.1994, the defendant could not extract the required quantity of net pure resin and he could only obtain 156.95 quintals, resulting a shortfall of 32.05 quintals of net pure resin, thus the amount recoverable from the defendant for extraction of less quantity @ Rs. 2500/- per quintal is Rs. 80,125/-. The damage caused by the defendant during the extraction work was 2710 tapped resin blazes, for which, the penalty @ Rs. 2/- per defective blazes comes to Rs. 5420/-. For the said extraction work the plaintiff paid a total sum of Rs. 23,129/- to the defendant and the defendant deposited Rs. 9,000/- as security at the time of the tender. The interest accrued thereon was Rs. 262/-. Hence, the amount, which is payable to the defendant is Rs. 9262/- and after deducting the security amount etc, the plaintiff is entitled to recover a sum of Rs. 49,031/- from the defendant. As per the plaintiff, in-spite of various requests so made, the defendant neither supplied the remaining quantity of resin nor made the payment of the amount. According to the affidavit dated 28.03.1994 given by the defendant, the defendant had agreed to deposit the balance amount, but he has failed to do so, despite various letters issued to him regarding payment of said amount.
3. The defendant, by way of filing the written statement, contested the suit of the plaintiff, wherein preliminary objections, qua, maintainability, estoppel and cause of action were raised. On merits, it was averred that defendant worked as a labour supply mate to the plaintiff for extracting resin from lot No. 3/R/94. The defendant further averred that his signatures were obtained on blank papers and no agreement was ever executed between the parties. The defendant has admitted the fact that he was to extract resin from 4500/- pine trees blazes. However, he denied that less quantity of resin was supplied by him. He alleged that the Incharge, Sara Depot, has not entered 71 tins of resin, which was supplied to him during the period of 16th to 31st October, 1994, this fact was brought to the notice of the plaintiff, as well as the local Police, but no action in this regard was taken. It was also averred that out of 4500/- blazes, 3304 blazes were destroyed due to fire in the forest, so the shortfall to the extraction of resin took place, thus he has not violated the terms and conditions of the agreement. It has been denied that the defendant has received many letters from the plaintiff and he admitted that only one letter, dated 16.09.1995 was received by him and the same was duly replied by him on 02.01.1996. Lastly, the defendant prayed for the dismissal of the case with costs.
4. The defendant has also preferred a counter claim against the plaintiff for the recovery of Rs. 38,921/- alongwith costs and interest @ 18% per annum, wherein he alleged that he worked as labour supply mate with the counter defendant in the year 1994-95, his job was to supply the labour for the extraction of resin from lot No. 3/R/94. It was further averred that the defendant was supposed to supply 189 quintals of resin, which was to be extracted @ 321 per quintals and he supplied 160.3 quintals of resin to the plaintiff-corporation. The rest of the resin could not be supplied by him, as the forest destroyed in fire. Further the Incharge of Bara Depot has also not entered 36 tins of resin consisting of 18 Kgs resin, per tin and this fact was also brought to the notice of the authority, but no action in this regard was taken. The total amount of labour payable to him for extraction of the resin is Rs. 50,381/- out of which, only Rs. 22,000/- have been paid to him by the plaintiff and he is entitled to recover a balance amount of Rs. 28,381/- alongwith the amount of security etc.
5. The plaintiff filed replication wherein he reiterated the averments made in the plaint and denied the objections of the defendant.
6. The plaintiff, by filing written statement to the counter claim raised preliminary objection qua maintainability, limitation, cause of action and that the counter claim has not been properly valued for the purpose of Court fee and jurisdiction. On merits, it was averred that the plaintiff/defendant has supplied only 156.95 quintals of pure resin and he is not entitled to recover any amount from the corporation.
7. The learned Trial Court on 24.05.2000 framed the following issues for determination and adjudication:
"1. Whether the plaintiff is entitled to recover the suit amount alongwith costs and interest from the defendant as alleged? OPP.2. Whether the suit is not maintainable in the present form? OPD3. Whether the plaintiff is stopped from filing the suit by its act and conduct? OPD4. Whether the plaintiff has a cause of action? OPP5. Whether the defendant is entitled to recover the amount claimed alongwith costs and interest as alleged? OPD6. Whether the counter claim of the defendant is not maintainable in the present form? OPP7. Whether the counter claim in time barred? OPP8. Whether the counter claim has not been properly valued for the purposes of court fee and jurisdiction? OPP9. Whether the defendant has a cause of action for the counter claim? OPD10. Relief."
8. After deciding issues No. 1, 4 & 6 in favour of the plaintiff, issues No. 2, 5 & 9 against the defendant, the suit of the plaintiff was decreed with costs and counter claim of the defendant was dismissed. Issues No. 3, 7 and 8 were not pressed before the learned Trial Court. Subsequently, the defendant preferred an appeal before the learned Lower Appellate Court which was also dismissed. Hence the present regular second appeal, which was admitted for hearing on the following substantial question of law:
"1. Whether the Courts below erred in not considering that the loss caused in the tapping of the turpentine was due to the fire which was not attributable to any negligence on the part of the appellant?
9. I have heard the learned Counsel for the parties.
10. The learned counsel for the appellant has argued that the findings recorded by both the learned Courts below are perverse as the same are contrary to the evidence on record and thus liable to be set aside. On the other hand, learned counsel for the respondent has argued that the learned Courts below have passed the judgments and decrees after taking into consideration each and every aspect of the case and also after considering the evidence on record, the judgments were passed after true appreciation of evidence, thus calls for no interference. He has further argued that the appellant/defendant has not filed appeal against the dismissal of his counter claim and decree of the learned trial Court, with regard to the dismissal of the counter claim and finding in the suit has attained finality, as the findings were given jointly in the civil suit and counter claim. In rebuttal, the learned counsel for the appellant has argued that the present appeal is maintainable against the findings given by the learned lower Appellate Court, affirming the judgment and decree of the learned trial Court, as both the learned Courts below have failed to take into consideration the facts with respect to the damage caused by the fire.
11. In order to appreciate the rival contentions of the parties, I have gone through the record carefully.
12. Plaintiff, in order to prove its case has examined Sh. Kashmir Singh as PW-1, who remained posted as Divisional Manager of Himachal Pradesh State Forest Corporation, Hamirpur, from October, 1991 to July, 1994, he has deposed that the contract of extracting resin was given to the defendant and its copy is Ext. P-1. The agreement was executed in presence of S/Sh. Munshi Ram and Dev Dutt, which bears the signatures of the defendant, as well as the witnesses and as per the agreement, the defendant was asked to extract 189 quintals of resin from 4500 blazes @ Rs. 321/- per quintal. In his cross-examination, he stated that the agreement was read over by him to the defendant. He denied that during the relevant period, Sh. Pritam Chand was the Incharge of Bara Depot. He also denied that the incident of fire in forest was reported to him by Sh. Pritam Chand.
13. PW-2, has deposed that he was posted as Director (North), Forest Corporation, Dharamshala, w.e.f. May, 1994 to March, 1998 and Divisional Manager, Hamirpur used to work under him, who had written him to waive off the shortfall in the extraction of resin and as per terms and conditions of the agreement, he waived off 10% of the shortfall and asked to effect the recovery for the remaining shortfall. In his cross-examination he feigned ignorance about the reason of shortfall.
14. PW-3, Divisional Manager, Himachal Pradesh State Forest Corporation, Hamirpur, testified the letters Ext. P- 3 & P-4, dated 21.04.1995 and 03.07.1995, which were issued to the defendant by him. In his cross-examination he admitted that the security, deposited by the defendant to the tune of Rs. 9,000/- was lying deposited with the Corporation.
15. PW-4, who was posted as Assistant Manager in the Forest Corporation at Bijhar w.e.f. 1991 to July, 1995, has admitted that he had written the letter, dated 15.08.1994, Ext. P-5, to the defendant and a copy of said letter was also sent to Divisional Manager, Hamirpur. In his crossexamination he admitted that the letters, in which the incident of fire in forest was reported, were written by Sh. Rattan Lal/defendant and Sh. Pritam Chand/depot Incharge and his report, Exts. D-1 & D-2 is also there.
16. Sh. Rattan Lal/defendant has stepped into the witness box as DW-1 and deposed that he has taken the contract of Bara jungle for extraction of resin. As per said contract, he was supposed to extract 189 quintals of resin. However, the forest caught fire and 3304 trees were either dried up or fell down. The said fact was also brought to the notice of Sh. Pritam Chand, depot Incharge, who reported the matter to the Block Officer and Assistant Manager, copies of which are Ext. D-1 & D-2. He has deposed that he also reported the matter to the Divisional Manager on 25.10.1994, but not action in this regard was taken. He further deposed that he had deposited 71 tins of resin w.e.f. 16.10.1994 to 31.10.1994, but only 35 tins were entered by the depot Incharge, and for which a complaint, dated 09.11.1994 was made by him to the Divisional Manager. He further stated that as he did not sell resin, so he is not required to pay the sale tax and his FDR of Rs. 9,000/- is lying deposited with the plaintiff. The plaintiff paid him only Rs. 22,000/-, and he is entitled to recover the balance labour charges, as well as amount of FDR from the plaintiff. In his cross-examination, he admitted that Ext. P-1, bears his signature. He denied that only 156.95 quintals of resin was supplied by him. He admitted that the penalty @ Rs. 2500/- per quintal could be imposed, in case of insufficient supply. He denied that Affidavit Mark-A was confirmed by him.
17. DW-2, depot Incharge, Bara forest, has testified that he has sent the report, Ext. D-1 to the Divisional Manager, Hamirpur, which bears his signatures. In his crossexamination, he denied that he has not entered all the tins of resin supplied by the defendant. He deposed that the defendant has only supplied 156.95 quintals of pure resin.
18. DW-3, Senior Assistant, Forest Corporation Hamirpur, has brought the record and proved Ext. DW-3/A and Ext. DW-3/B, copies of the complaints, dated 9.11.1994 and 22.10.1994.
19. In rebuttal, the plaintiff has examined three witnesses, wherein, PW-5-R, has deposed that the agreement, Ext. PW-5/A, has been signed by him as witness. In his cross-examination he deposed that the agreement was not read over in his presence.
20. PW-6-R, has deposed that the Affidavit, Ext. PW- 6/A, bears his signatures as a witness. In his crossexamination he admitted that the Affidavit was got typed by the defendant at Hamirpur and at the time of execution of the Affidavit, he had read the same.
21. PW-7-R, retired, Divisional Manager, Himachal Pradesh Forest Corporation, Hamirpur, has deposed that the suit was instituted by him, as there was shortfall of approximately 32 quintals of resin. In his cross-examination, he feigned ignorance about the fact that the shortfall resulted due to the fire in the jungle.
22. In the learned trial Court, while arguing the case, agreement Ex.PW-5/A was admitted by the learned counsel for the appellant/defendant. From this evidence on record, it is clear that there was an agreement inter se the plaintiff and the defendant, which was duly executed for the extraction of the resin from the allotted jungle and the minimum quantity was also fixed. The case of the appellant/defendant is that resin could not be extracted due to fire in the jungle. On the other hand, defendant has also maintained counter claim and stated that the shortfall has occurred due to fire in jungle, as a result, bulk of blazes were destroyed and secondly 71 resin tins supplied by him at Bara depot between 16 to 31.10.1994 were not calculated by Incharge of the said depot, but no evidence in this regard is on record and PW-2, who was the Incharge of the Bara depot, has specifically denied such allegations. The report qua this aspect made by the defendant to the Divisional Manager of the Forest Corporation could not prove the allegations, as no evidence in this regard is brought on record and there is no proof to this aspect that 71 tins supplied by the defendant were not calculated by the Incharge, Bara depot.
23. It is admitted fact that on account of fire in the forest, 10% shortfall was permitted to the defendant from the contractual obligations by the competent authority and this fact was also admitted by the defendant. When defendant pointed out the destruction of blazes on account of fire, he was offered 10% dispensation qua the quantity of resin to be supplied as per the terms and conditions and to prove this fact, letter Ext. P-2, dated 27.03.1995, which was sent by the Manager, Forest Corporation, Hamirpur, before Director, Forest Corporation, Dharamshala, is on record. Thereafter, letter, Ext. P-3, dated 21.04.1995 was also issued to the defendant regarding intimating him that he only supplied 156.95 quintal of pure resin against the terms and conditions of the agreement. He was further intimated that under Clause 15 & 42 of the agreement, 10% rebate was granted in his favour, which is subject to giving of an Affidavit by the defendant. He was also intimated about the due amount and requested to pay the same. After such intimation, the defendant has given Affidavit, Mark-X to the plaintiff, but later on, the defendant has denied that he has ever given the said Affidavit, however PW-6, who was the attesting witness of the Affidavit, has identified the signatures of the defendant, Ext. PW-6/A on Mark-X. In these circumstances, it is established that the defendant has submitted his Affidavit, Mark-X in favour of the plaintiff and agreed that, in case, 10% rebate was given to him, he will pay the price of shortfall of resin and for shortfall of 10% he will not go to any Court for recovery. In view of this aspect, the defendant cannot say that his contract was frustrated due to fire and he has no excuse from making payment of the due amount.
24. The defendant though has written letters for the shortfall, but this is no grounds as he has also given Affidavit and accepted 10% shortfall due to fire. In these circumstance, this Court finds that the learned Courts below have taken into consideration the fact with regard to the less tapping of resin due to fire and the substantial question of law is answered accordingly holding that the learned Courts below have not erred and have considered the loss, if any, caused in the tapping of resin and have rightly come to conclusion that less resin is collected due to the negligence of the defendant.
25. Resultantly, the findings arrived at by both the learned Courts below are just, reasoned and needs no interference, as the appellant/defendant, has himself agreed to accept 10% shortfall due to fire and undertook to pay the balance amount of shortfall, as per agreement, Ext. PW-5/A. Thus, the substantial question of law is answered accordingly and the instant appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs.
26. Pending miscellaneous application(s), if any, also stand(s) disposed of.
