S.N. Modi, J.
1. This first appeal by defendant Surajmal is directed against the judgment and decree of the Additional District Judge, Ganganagar dated 29.1.1972 in a suit for damages.
2. The plaintiff-respondent, State of Rajasthan, purchased and transhipped from Panagarh 2630 victualic pipes as they were needed for the use of the Rajasthan Canal Project. The said pipes were received at Hanumangarh railway station during the month of July, 1959 and thereafter. The work of unloading and carrying of the said pipes was given on contract to Surajmal appellant by the Rajasthan Canel Project authorities It is alleged that Surajmal with the help and connivance of Prakash Chind (now deceased) managed to steal away 135 pipes out of the above lot of 2830 pipes on the night between 29th and 30th August, 1959. The matter was reported to the Deputy Superintendent of Police, Hanumangarh on 10 10 59. During the course of investigation 16. out of 135 pipes ware recovered from the soop of (sic) Prasad an iron merchant of New Delhi on 4.11.1959. The remaining pipes numbering 119 could neither be traced out nor recovered by the police. The police after investigation put up a challan against Surajmal and Prakash Chandra Under Section 379, Indian Penal Code, in the court of Sub Divisional Magistrate, Hanumangarh The case was later on transferred to the court of Assistant Colonisation Commissioner-cum-Magistrate First Class, Hanumangarh. The latter after trial acquitted Surajmal and Prakash Chandra, but on appeal the High Court convicted Surajmal Under Section 379, Indian Penal Code, vide judgement dated 17-4-1964.
3. The plaintiff-State of Rajasthan then instituted the suit out of which this appeal has arisen for damages amounting to Rs. 10,435 67 being the cost of 119 pipes against Surajmal and the legal representatives of Prakash Chandra.
4. The defendants traversed the allegations made in the plaint and denied having committed theft of 135 pipes. The learned Additional District judge decreed the suit against Surajmal for Rs. 7,320.80 with interest at the rate of 6% per annum from the date of the decree. The suit against the legal representatives of Prakash Chandra was dismissed. Hence this appeal by Surajmal defendant.
5. 1 have heard the learned Counsel for the parties and examined the entire record of the case.
6 It may be stated at the out set that the plaintiff has succeeded in establishing the factum of theft. It is proved from the evidence that on the night between 29th and 30th August, 1959 Surajmal removed 135 pipes and transported them to Hissar in three trucks engaged by him through P.W. 10 Mathuradas, an agent of Deepak Transport Company. P.W. 1 Hanuman has stated that he along with other labourers went to Hanumangarh station and loaded pipes in three trucks in the presence of Surajmal, P.W. 10 Mathuradas, the agent of Deepak Transport Company and one or two unknown persons. P.W. 7 Balkar Singh driver of one of the three trucks says that the pipes were loaded in three trucks by labourers and were transported to Hissar and that Surajmal, Prakash Chandra and Mathuradas P.W. 10 accompanied the trucks to Hissar. PW 10 Mathuradas says that on 29-8-1959 he at the request of Surjmal and Prakash Chandra engaged three trucks for carrying pipes to Hissar and that 135 pipes were loaded in the three tiucks at Hanumangarh railway station at the instance of Surajmal and Prakash Chandra in his presence. P.W. 3 Indra Singh Octroi Inspector of Hissar says that on 30-8-1959 he issued three octroi receipts Ex. 3, Ex. 4 & Ex. 5 in respect of three trucks loaded with pipes.
7. From the aforesaid evidence it is abundantly clear that 135 pipes were taken away by Surajmal defendant, from Hanumangarh railway station on the night between 29th and 30th. August, 1959 learned Counsel for the appellant has not been able to assail this evidence. I, am, therefore, in agreement with the trial Court hold that 135 pipes were removed by Surajmal on the night between 29th and 30th August, 1959.
8. The crucial question that arises for consideration is whether these stolen pipes were the property of the State, The plaintiff's case in this respect is that 135 pipes were stolen out of 2630 pipes lying stacked outside Hanumangarh railway station in the custody of the Rajasthan Canal Project authorities. learned Counsel for the defendant-appellant does not contest the fact that 2630 pipes were the property of the State and they were in the custody of the Rajasthan Canal Project authorities What is contested before me is that 135 stolen pipes were not removed out of the lot of 2630 pipes. It is strenuously contended that the plaintiff has completely failed to prove that the theft took place out of the lot of 2630 pipes. It is further contended that from the evidence of the plaintiff's own witnesses it is established that there was no shortage out of the lot of 2630 pipes and the 135 stolen pipes were taken away out of another lot of 199 pipes which was lying undelivered at the Hanumangarh railway station in the custody of the Railway, learned Counsel for the appellant strenuously contends that since it is not the case of the plaintiff that 135 pipes were stolen out of the lot of 199 pipes, No decree can be passed against the defendant-appellant, the lot of 199 pipes, being not the subject matter of the suit.
9. I find considerable force in the above contention. PW 6 Surajpal Singh Sub Divisional Junior Engineer states that he took charge of the stock of pipes from Kartar Singh on 30-8-1959 i.e. soon after the theft took place. The relevant portion of his statement runs as under:
eSus 30&8&59 dks djrkjflag ls pktZ fy;k Fkk A fdlh rkjh[k dks fjyho gqvk irk ugh A eSus djrkjflag ls ikbi laHkkyh Fks la[;k vc ;kn ugh ftrus LVkWd jkftLVj es ikbi ntZ Fks os eSu laHkky fy, Fks A eSus tc pktZ fy;k rc ikbi LVkWd jftLVj es ntZ ikbiks ls T;knk ugh Fks A
The above statement clearly goes to show that there was No shortage in the pipes which were lying in the custody of the Rajasthan Canal Project authorities and number tallied with the entries in the stock register. He has further deposed as under:
fdrus ikbi LVs'ku ij Fks A tckuh ;kn ugh ysfdu ekywe gqvk 135 ikbi de gS A 135 dh Qhxj eSus bl izdkj fudkyh fd tks la[;k LVkWd jkftLVj es Fkh o blh nkSjku ,d vksj vkj-vkj- vk pqdh FkhA ftldk eky LVkWd jkftLVj es ntZ ugh Fkk A nksusk dk tksMdj tks eky feyk mldks fxu dj dHkh 135 dh fudy Fkh tks -----------ftu vkj-vkj- dk eSus mij ftdz fd;k gS og 199 ikbi dh Fkh Abl vkj-vkj- dh fMyhojh tc eSus psfdx fd;k ogh yh gqbZ Fkh A----------- ifgys dh lc vkj-vkj- dk eky geus dkmUV dj fy;k Fkk A og pktZ ds le; iwjk Fkk & jsyos okyks us vius ikbi 199 iwjs dj fy;s Fks &ckgj; iM+s gq, dqN ikbZi jsyos lhek es [khp ys x;s Fks A ;g eS dSls dg ldrk gwW fd ckj ds iM+s gq, 135 ikbi jsyos okys vUnj ys x;s Fks A
It follows from the above statement that on 30.8.1959 or even thereafter there was No shortage of pipes lying in the custody of the Rajasthan Canal Project authorities. It further appears that on physical verification the total quantity of pipes tallied with the total quantity of pipes entered in the stock register. The above statement further shows that the consignment of 199 pipes, though reached Hanumangarh railway station, its delivery was not taken up to 30.8.19. Its further appears that the theft took place out of the consignment of 199 pipes and railway employees subsequently recouped the deficiency by pulling pipes lying outside the railway station in the custody of the Rajasthan Canal Project authorities.
10. The position has been made further clear by PW 5 Mahadeo Prasad, Assistant Engineer. He has deposed that in all 2829 pipes were received and unloaded and out of these 2829 pipes the theft of 135 pipes took place. He has further deposed that after checking the railway employees took away 199 pipes within railway boundaries. If the statements of PW 5 Mahadeo Prasad & PW 6 Surajpal Singh are read together, the only possible conclusion that can the arrived is that the total number of 2829 pipe consisted of 2630 pipes lying in the custody of the Rajasthan Canal Project authorities and 199 pipes lying undelivered on the railway yard and the theft took place out of the lot of 199 pipes It further appears that subsequently the railway employees made up toe deficiency of 135 pipes out of the lot of 2630 lying in the custody of Rajasthan Canal Project authorities.
11. It is contended by the learned Counsel appearing on behalf of the State that the subject matter of the present suit is 119 stolen pipes and it is immaterial whether these 119 pipes were stolen oat of the lot of 2630 pipes or out of the lot of 199 pipes lying undelivered with the Railway. On the other hand it is contended on behalf of the defendant-appellant that No relief can be granted to the plaintiff on altogether different facts not alleged in the plaint. His contention is that the plaintiff came with the story that the theft took place out of the lot of 2630 pipes which it could not establish. On the contrary what it established was that the theft took place out of another lot of 199 pipes of which No mention was made in the plaint.
12. The general principle No doubt is that the relief should be founded on the pleadings made by the parties but considerations of form cannot override the considerations of substance. Whether the plaintiff is entitled to relief even though the subject matter is not the lot of 199 pipes will depend upon the inquiry whether the subject matter of the trial in the court below related to the lot of 199 pipes and whether evidence was given to prove ownership of the plaintiff to 199 pipes. The plaintiff can be granted a decree if the answers to the above questions are in favour of the plaintiff and the defendant cannot avail of the technical objection that the plaint did not specifically make out the case of theft from the lot of 199 pipes. But I regret to say that in the trial court No effort was made by the plaintiff to prove that the lot of 199 pipes belonged to it or to the Rajasthan Canal Project. Neither the original Railway Receipt was produced nor it was proved. The stock register and the measurement book were also not produced to show that the entries in respect of the lot of 199 pipes were made therein to show the ownership of the State.
13. In order to surmount this difficulty the learned Counsel for the plaintiff moved an application seeking permission to adduce additional evidence under Order 41 Rule 27 C.P.C It is well settled that the appellate court is entitled to permit any party to produce additional evidence only when the conditions laid down in Rule 27 of Order 41 C.P.C. are found to exist. Clause (a) to Rule 27 of Order 41 C.P.C has No application because it is not the case of the plaintiff that the court below refused to admit evidence which it ought to have admitted. Clause (b) of that rule is also in applicable for No case was get up in the plaint that the theft took place out of the lot of 199 pipes. The question of the appellate court requiring additional evidence to enable it to pronounce judgment or for any other substantial cause, therefore, does not arise. The plaintiff thus cannot be permitted to prove by adducing additional evidence a new case in appeal which has not been set up in the plaint. The application under Order 41 Rule 27 is, therefore, rejected.
14. The learned Additional District Judge did not consider the above aspect of the case He presumed the ownership of the plaintiff in respect of the stolen pipes simply because the defendant did not specifically plead that the stolen pipes did not belong to the plaintiff or that the pipes were the property of some one else. In my opinion, No such presumption can be drawn in respect of 199 pipes which were not the subject matter of the suit, and, therefore, No denial of ownership in respect of them was required to be made in the written statement.
15. The learned Counsel for the plaintiff contends that in the criminal case it was held by the High Court that the stolen property belonged to the plaintiff and any other finding in the present case would lead to two conflicting judgments of the same High Court. The contention, though attractive, is devoid of force and is rather more sentimental than legal. There is the abundant authority for the proposition that a judgment of conviction in a criminal court is irrelevant and cannot in a subsequent civil suit be treated as evidence of fact on which the conviction is based. The law is that the civil court must independently of the decision of the criminal court investigate facts and come to its own finding It was held in Ramadhar Chaudhary and Ors. v. Janki Chaudhary : AIR1956Pat49 that a judgment of a criminal court is admissible to prove only who the parties to the dispute were and what order was passed, but the faces stated there in or statements of the evidence of the witnesses examined in the case, or the findings given by the court, are not admissible at all & the civil court is bound to find the facts for itself. The same view has been taken by their Lordships of the Supreme Court in Anil Behari Ghosh v. Smt Latika Bala Dassi and Ors. AIR 1955 SC 966 and by this Court in Onkarmal and Anr. v. Banwarilal and Ors. .
16. In this view of the matter the finding of the criminal court that stolen property belonged to the State cannot be made basis in the present suit for holding that the stolen property belonged to the State.
17. In the result the appeal is allowed, the judgment & decree of the court below are set aside and the plaintiff's suit is dismissed. Having regard to the circumstances of the case the parties are left to bear their own costs throughout.