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Union of India (Uoi) Vs. Wazir Chand Mahajan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Appeal No. 3 of 1963
Judge
Reported inAIR1966HP40
ActsCode of Civil Procedure (CPC) , 1908 - Sections 80 and 107 - Order 41, Rule 27 - Order 1, Rule 9; ;Limitation Act, 1908 - Section 23 - Schedule - Article 49
AppellantUnion of India (Uoi)
RespondentWazir Chand Mahajan
Appellant Advocate Shakti Parshad, Govt. Adv.
Respondent Advocate Ved Vyas, Adv.
DispositionAppeal dismissed
Cases ReferredFirm Sitaram Bindraban v. Governor
Excerpt:
- om parkash, j. 1. this appeal, by the union of india, is directed against a decree of the learned senior subordinate judge chamba, awarding a sum of rs. 21,000, as compensation, to the respondent. 2. the respondent had filed a suit, against the appellant, for the recovery of rs. 46,000, as compensation. the suit was based on the following allegations.shri trilok nath, younger brother of the respondent, was granted a contract for extracting, collecting, and exporting medicinal herbs, such as dhoop, kaur, mithi patis, tuth, muskbala, ban kakru etc. from the forests of chamba district for a period of one year, beginning with the first september, 1949, for a consideration of rs. 38,900. the terms and conditions of the contract were embodied in an agreement dated the 16th june, 1949. shri.....
Judgment:

Om Parkash, J.

1. This appeal, by the Union of India, is directed against a decree of the learned Senior Subordinate Judge Chamba, awarding a sum of Rs. 21,000, as compensation, to the respondent.

2. The respondent had filed a suit, against the appellant, for the recovery of Rs. 46,000, as compensation. The suit was based on the following allegations.

Shri Trilok Nath, younger brother of the respondent, was granted a contract for extracting, collecting, and exporting medicinal herbs, such as Dhoop, Kaur, Mithi Patis, Tuth, Muskbala, Ban Kakru etc. from the forests of Chamba District for a period of one year, beginning with the first September, 1949, for a consideration of Rs. 38,900. The terms and conditions of the contract were embodied in an agreement dated the 16th June, 1949. Shri Trilok Nath got the contract for the above purpose for the next year also, beginning with first September, 1950, for a consideration of Rs. 70,000. The business of extracting, collecting and exporting the herbs was carried on, by Sri Trilok Nath, under the name and style of the Himachal Drug Nurseries, Chamba. Shri Trilok Nath had admitted the respondent as a partner to the aforesaid business in December, 1949 and had completely retired, himself, from the business on the 31st August, 1950. The respondent had become the sole owner of the business, known as the Himachal Drug Nurseries, Chamba Shri Trilok Nath had transferred the rights and liabilities, under the contract, for 1950-51 for extracting, collecting and exporting herbs, in favour of the respondent. The respondent had got extracted and collected for export herbs at different places.

3. Shri Trilok Nath was carrying on timber business, in partnership with Shri Prabh Dayal and Shri Gouri Shanker, under the name and style of Kashmir Woods at Jammu, in Jammu and Kashmir State. Disputes arose between the partners about the business, Shri Prabh Dayal and Shri Gouri Shanker lodged a report, with the Jammu police, that Shri Trilok Nath had manipulated entries in the books of account and had embezzled large sums of the partnership. At the instance of the Jammu police, the Chamba police had seized herbs, from various places, from the possession and custody of the respondent, from April to August 1951. The herbs, seized, were entrusted to various yuperdars. The respondent applied to the Magistrate, First Class Chamba, for the release of the herbs but was unsuccessful.

He, then, filed petitions, under Article 226 of the Constitution of India, in this Court. But the petitions were rejected. The respondent went up in appeal to the Hon'ble Supreme Court. The appeals were allowed on the 22nd April, 1954. It was held that the seizure of herbs was illegal and in utter violation of the provisions of law and that the respondent was entitled to get back the herbs. On 4th May, 1964, the respondent moved the District Magistrate, Chamba, for restoring the herbs. A restoration order was passed on the 27th August, 1954. But the respondent was unable to get the herbs as they had been spoiled and rendered useless due to the negligence of the officials of the appellant The respondent claimed Rs. 88. 424-6-0 as the price of the herbs, and Rs. 14,296, as interest, and after remitting Rs. 6,770-6-0. filed a suit for the recovery of Rs. 46,000.

4. The suit was contested, on behalf of the appellant. Preliminary objections were taken up. It was pleaded that the suit was not maintainable as the service of the notice, under Section 80 C. P. C., was defective, that the suit was bad for mis-joinder and non-joinder of parties, that the suit was barred by limitation, that as there were two contracts for the extraction of herbs, two suits should have been filed and that the respondent was estopped, by his own act and conduct, from tiling the suit. On merits, the appellant denied that contracts for the extraction of herbs were granted to Shri Trilok Nath. It was pleaded that the contracts were not validly executed and no rights could pass to the respondent under the contracts. It was admitted that herbs were seized from the possession of the respondent but it was pleaded that the herbs, seized, except 45 bags had been delivered to Shri Des Raj, Advocate, agent of the respondent and that the respondent had refused to take delivery of the remaining 45 bags. The appellant denied that the herbs had decayed through the negligence of the officials of the appellant or that the respondent was entitled to get any compensation or interest.

5. The learned Senior Subordinate Judge Chamba, rejected all the preliminary objections, raised on behalf of the appellant. His findings, on merits, were that the two contracts for the extraction, collection and export of herbs had been granted to Shri Trilok Nath, that the rights and liabilities, under those contracts, had passed to the respondent, that no portion of the herbs seized, from the possession of the respondent, had been delivered to Shri Des Raj or to any other agent of the respondent, that the herbs seized had perished because of the negligence of the officials of the appellant and that the respondent was entitled to get compensation for the herbs. The learned Senior Subordinate Judge assessed the compensation at Rs. 21,000, and passed a decree for the recovery of that amount with proportionate costs in favour of the respondent. The claim for interest, made by the respondent, was disallowed.

6. Aggrieved by the decree of the learned Senior Subordinate Judge, the appellant has come up in appeal. The respondent has filed cross-objections, claiming a decree for Rs. 46,000.

7. Apart from the preliminary objections, raised at the trial of the suit, on behalf of the appellant, the main point, which requires decision, in the appeal, is whether the herbs, seized from the possession of the respondent, had been delivered to Shri Des Raj Advocate or the respondent, and if not, whether the herbs had decayed on account of the negligence of the officials of the appellant and the respondent was entitled to get compensation for the loss, It was admitted, on behalf of the appellant, that herbs, as detailed in the plaint, had been seized from the possession and custody of the respondent by the Chamba police. The plea of the appellant was that the herbs except 45 bags were delivered to Shri Des Raj and the respondent had refused to take the 45 bags. The appellant did not produce Shri Des Raj in support of his plea. Neither any receipt of Shri Des Raj was produced

Shri Des Raj was practising as an Advocate at Chamba and is now the Speaker of the Legislative Assembly. Himachal Pradesh. His evidence was easily available. The non-production of Shri Des Raj raised a presumption that if produced, his evidence would have been unfavourable, againsl the appellant The Superdars, with whom the herbs had been entrusted, did not support the case of the appellant that the herbs had been delivered to Shri Des Raj or to the respondent. The herbs, after seizure, were, admittedly, entrusted to Atma Ram P W 5, Harbans Lal P. W. 9. Channa Ram P W. 11, Panchhi father of Nihala P W. 12. Balm Ram D. W. 1 and Durga Dass as superdars. It is not in dispute, that the herbs, entrusted to Channa Ram P W 11 and Babu Ram D. W. I were never delivered to Shri Des Raj or to the respondent. The herbs, entrusted to Channa Ram P. W. 11, had got spoiled by insects and were ultimately auctioned but no buyer had come forward.

The herbs, entrusted In Babu Ram D.W. 1, had also got spoiled and were washed away by floods Atma Ram P. W. 5 stated that the herbs seized by the police, at Chauri and Gehra were entrusted to him and that the respondent had come to him to take delivery of the herbs but had refused to do so as the herbs had been completely spoiled The witness, further, stated that he had gone with the respondent to take delivery of the herbs, entrusted to Panehhi, but those herbs had also decayed. Nihala P. W. 12, son of Panehhi, superdar, stated that Dhoop had been entrusted to his father and that it had got rotten and that a man from Amritsar had come to take delivery of the Dhoop but had refused to do so as the Dhoop had been totally decayed. Nihala, further, stated that his father had died. Harbans Lal P. W. 9 stated that herbs seized at Sullanpur were entrusted to him and that the respondent had come to take delivery of the herbs but had refused to do so as the herbs had been spoiled.

It was contended, on behalf of the appellant, that Atma Ram P W 5 and Harbans Lal P.W. 9 were interested witnesses as they were employees of the Himachal Drug Nurseries and their evidence should not he believed. Both the witnesses had left the service of Himachal Drug Nurseries long ago The mere fact that they were once in the employ of the Himachal Prutf Nurseries is insufficient for holding that they were partisan witnesses and for rejecting their evidence Nihala P. W. 12, son of Panchhi was lot in the employ of the Himachal Drug Nurseries. The was an independent witness. The trial Court had granted several adjournments to the appellant for the production of Durga Dass superdar but the appellant failed to produce him (SIC) long last, the evidence of the appellant was closed. In this Court, after the arguments in the appeal had concluded and judgment was reserved, an application, under Order 11 Rule 27 C. P. C., for the production of Durga Dass, was put in on behalf of the appellant.

It was staled, in the application, that Durga Dass was not available at the time of the trial of the suit and, therefore, could not be produced. It was requested that Durga Dass may be summoned and examined in appeal The application was opposed, on behalf of the respondent. It was pointed out that Durga Dass was residing only at a distance of 30 miles from Chamba and was easily available but the appellant had failed to produce him, despite the grant of six adjournments by the trial Court. The respondent pleaded that the permission to produce Durga Dass, at the appellate stage, would amount to permitting the appellant to fill in gaps in its evidence. The objection raised, by the respondent, has got force. The evidence of the appellant was called for on the 26th October 1961 But no witness was produced on that date. The case was adjourned to the 29th November, 1961 for the evidence of the appellani Again, no evidence was produced on that date.

On subsequent dates, three defence witnesses were produced. Durga Dass was not produced though adjournments for his production were granted upto the 26th August, 1962. It is clear that the trial Court had granted sufficient opportunity to the appellant for the production of Durga Dass Durga Dass was residing at Banikhet on the Chamba-Pathankot road, at a distance of 31 miles from Chamba Had the appellant made serious efforts, it would not have been difficult to produce Durga Dass The non-production of Durga Dass cannot but be attributed to lack of diligence on the part of the appellant. This Court does not require the evidence of Durga Dass to enable it to pronounce judgment. Permitting the appellant to produce Durga Dass, at the appellate stage, in the above circumstances, will amount to permitting it to remove lacuna. In its evidence. This, the appellant cannot be permitted to do. The following observations of their Lordships of the Privy Council, made in Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, may he cited, in this connection :

'The provisions of Section 107 as elucidated by Order 41, Rule 27, (C. P. C.) are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under Rule 27, Clause (1) (b), it is only where the appellate Court 'requires' it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Courl to pronounce judgment, or for any other substantial cause, out in either case it must he the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'.

8. The learned counsel for the appellant placed reliance on K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1520, wherein it was said.

' Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to ' pronounce judgment ' but also for ' any other substantial cause '. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence ' for any other substantial cause ' under Rule 27 (1) (b) of the Code. '

9. The authority, relied upon by the learned counsel, does not lay down any principles, different from those, laid down, in AIR 1931 PC 143, supra. In fact, the Privy Council authority was relied upon by their Lordships of the Supreme Court. The evidence of Durga Dass will not remove any obscurity. The appellant was given more than sufficient time for the production of Durga Dass by the trial Court but it had failed to produce him. When, a party had been given ample opportunity to produce evidence but had failed to produce it, it would not be in the interest of justice that the party should be permitted to produce that evidence at the appellate stage. Vide State of U. P. v. Manbodhan Lal Srivastava, (S) AIR 1967 SC 912. For the reasons stated above, the application of the appellant, for the production of Durga Dass. is dismissed.

10. For proving that the herbs had been delivered to Shri Des Raj Advocate, reliance was placed, on behalf of the appellant, on the evidence of Shri T.S. Negi, D. W. 3 and the documents Ex. D-3, Ex. D-4 and Ex D-7. Shri T.S. Negi D. W. 3 was Deputy Commissioner Chamba District, at the relevant time. Ex. D-3 is a memorandum, addrcsesd bv the Superintendent of Police, Chamba, to the District Magistrate, Chamba. It was stated, in this memorandum, that on inquiry from Shri Des Raj Advocate it was found that the herbs entrusted to Harbans Lal, Durga Dass, Atma Ram and Panchhi (wrongly stated as Panda) superdars had been handed over to the respondent. The same thing was repealed in Ex. D-4. which is the reply by the Collector, Chamba to the notice, under Section 80 C. P. C., for the respondent and in Ex. D-7 which is a memorandum, addressed by the Deputy Commissioner Chamba to the Assistant Secretary Judicial Shri T.S. Negi D. W. 3 staled that the fad that the herbs had been delivered to the respondent was mentioned after making enquiries from Shri Des Raj, Advocate.

As already staled, Shri Des Raj was not produced to prove that any enquiries were made from him. On the other hand, the respondent produced the letter Ex. P. W 15/K, from Shri Des Raj, slating that he had never informed the Collector, Chamba, that herbs had been deli vered to the respondent. The superdars, except Durga Dass, who was not produced, had stated that the herbs had been totally spoiled and were not delivered to the respondent. It appears that the fact that on enquiry from Shri Des Raj, it was found that the herbs had been delivered to the respondent, was mentioned in Ex. D-4 and Ex. D-7, under some misapprehension. Shri T.S. Negi might have been misled by the letter Ex. D-3 of the Superintendent of Police or by some office noting It is to be held that the herbs seized, from the custody and possession, of the respondent were not restored to him.

11. Besides the respondent, Atma Ham P. W. 5. Harnam Singh P W. 7, Harbans Lal P. W. 9, Channa P. W. 11 and Nihala P. W 12 stated that the herbs had completely decayed. Channa Ram P. W. 11 had put in an application Ex. P-16, on the 24th June, 1963, requesting that the herbs entrusted to him were rolling on account of rains and dampness and had been spoiled by insects and that they may he entrusted to some other person. Channa Ram had made another application on the 13th September. 1955, inviting attention to his previous application and intimating that a portion of the herbs entrusted to him had been spoiled by insects and rain-waters and that the rest were bound to be spoiled within a few days. The District Magistrate, to whom the application was addressed, issued a notice to the respondent.

The respondent refused to lake back the herbs as they had been totally spoiled Babu Ram DW-1, a superdar, stated that the herbs had got spoiled and were washed away in floods. The herbs had got rotten and spoiled because no steps or measures were taken to properly store them and preserve them. The decaying of the herbs was due to the negligence of the officials of the appellant, who had not taken proper precautions, to properly store the herbs which were of perishable nature. The respondent had been pointing out, from the day of the seizure of the herbs, that they were of perishable nature but the authorities, concerned, did not lake any measures to preserve, the herbs properly The herbs had been wrongfully seized, vide judgment Ex. PW 15/0 of the Hon'ble Supreme Court, and had decayed due to the negligence of the officials of the appellant. The respondent was entitled to recover commensation for the loss of the herbs. 12. It was urged, on behalf of the appellant, that even if it be held that herbs had decayed on account of the negligence of the officials of the appellant, the respondent was not entitled to recover compensation as he had no title to the herbs. The title of the respondent was challenged on two grounds. Firstly, that the contracts, executed in favour of Shri Trilok Nath, under which the respondent claimed title to the herbs, had not been executed in the name of the President of India, as required by Article 299 of the Constitution of India and were not, therefore, valid contracts and could pass no title to the respondent; and secondly, lhal Shri Prabha Daval and Shri Gouri Shanker who were partners of Shri Trilok Nalh, in Himachal Drug Nurseries, had not transferred their interest in favour of the respondent

The argument, raised on behalf of the appellant, appears to be misconceived. The Hon'ble Supreme Court had directed the restoration of the herbs to the respondent The herbs were not restored to him. The respondent was entitled to recover the value of the herbs on the basis of the orders of the Hon'ble Supreme Court The herbs were admittedly seized from the custody and possession of the respondent, The seizure was hold to be wrongful by the Hon'ble Supreme Court. The respondent, from whose possession the herbs were unlawfully seized, was entitled to maintain an action for damages against the wrongdoer who had no title in himself, vide page 270 of Salmond on Torts. Twelfth Edition.

13. The contention, that the respondent had no title to the herbs, is also not well founded. Shri Trilok Nalh PW 13 stated that he had taken contract for extracting, collecting and exporting medicinal herbs, from the forests of Chamba District for one year, commencing with first September 1940 The terms and conditions of the contract were embodied in Ex. P-2 which is dated the 16th June, 1949 and was executed, between the Chief Commissioner, Himachal Pradesh and Shri Trilok Nath, The question of the applicability of the provisions of Article 299 of the Constitution to Ex. P-2 could not arise as the Constitution had not been even enacted on the day on which Ex. P-2 was executed. Himachal Pradesh was being governed, at that time, by the Central Government, through the Chief Commissioner bv promulgating Orders, under the Extra Provincial Jurisdiction Act. One of the Orders, promulgated, was the Himachal Pradesh (Administration) Order.

According to the provisions of that Order, executive power, with respect to Himachal Pradesh, vested in the Chief Commissioner. The contract Ex. P-2 was correctly executed in the name of the Chief Commissioner. It may be pointed out that though the Government of India Act, 1935 was amended by the Constituent Assembly Act, No. 1 of 1949, adding Section 290A, authorizing the Governor-General to promulgate an Order, for the administration of any Indian State or any group of States, as a Chief Commissioner's Province, under the Government of India Act, yet no Order was promulgated, under section 290A. until the 29th July, 1949. On that day the States Merger (Chief Commissioners' Provinces) Order. 1949 was promulgated, more than a month after the execution of Ex, P-2.

14. Shri Trilok Nath had taken the contract for the following year commencing with first September, 1950 The terms and conditions of that contract were embodied in Ex: P-5, which was executed on the first November, 1950, between the Chief Commissioner. Himachal Pradesh and Shri Trilok Nath Under the Constitution, as it stood on first November, 1950, Himachal Pradesh was a Part C State. Article 299 of the Constitution was not applicable to a Part C State as the word 'State' used in that Article did not include a Part C Slate, vide Article 264 Himachal Pradesh, at that time, was being administered by the President, through the Chief Commissioner. The agreement Ex. P-5 was rightly executed in the name of the Chief Commissioner II may be stated that the authority of the Conservator, who had signed Ex P-2, and the Chief Conservator, who had signed Ex. P-5. on behalf of the Chief Commissioner, was not challenged The two contracts Ex. P-2 and Ex. P-5 were validly executed and were binding on the Chief Commissioner

15. According to the evidence of Shri Trilok Nath, he had admitted the respondent, as a partner, in the business. Himachal Drug Nurseries, on the 28th December 1949 and had himself retired from the business in December, 1950. The deed of dissolution of partnership is Ex. PW-13/A. This is dated the 10th December, 1950. Shri Trilok Nath stated that he had transferred his rights, under the contract Ex. P-5. in favour of the respondent The documentary evidence, on record, corroborates the statement of Shri Trilok Nath, He had put in an application, Ex P-7, requesting the Chief Conservator of Forests, to sanction the transfer of his rights and liabilities, under the contract Ex. P-5, in favour of the respondent. A similar application, Ex. P-6, was made by the respondent. Both the applications. Ex. P-7 and and Ex. P-6, are dated 15th January. 1951. The Chief Conservator of Forests had approved the transfer of the rights and liabilities under the contract Ex. P-5. vide Ex. P-3, the letter of the Conservator of Forests Shri Trilok Nath had made an endorsement on the contract Ex. P-5 that he had transferred all rights and liabilities in favour of the respondent.

The respondent had made an endorsement accepting the rights and liabilities, under the contract. From the above discussion of the evidence, it is clear that the respondent had become the owner of the business, Himachal Drug Nurseries, and the rights and liabilities, under the contract Ex. P-5, had been transferred to him. The transfer had been recognised by the officials of the appellant. There is not an iota of evidence that Shri Prabh Dayal and Shri Gouri Shanker had any interest in the business, known, as Himachal Drug Nurseries, or in the contract Ex. P-5. Shri Trilok Nath was, therefore, competent to transfer his rights and liabilities in the business and under the contract Ex P-5. On transfer, the respondent had become the sole owner of the herbs, collected. These herbs were seized from his possession.

16. The respondent had a title to the herbs seized. They were wrongfully seized from his possession and had decayed, due to the negligence of the officials of the appellant. The respondent was entitled to recover compensation for the injury done to him. The measure of compensation would be the value of the herbs. The respondent claimed that the value of the herbs, seized, was Rs. 38,424/6. The details of the herbs seized and their value are given in para 6 of the plaint. Superdnamas were prepared at the time of the seizure of the herbs and their entrustment to the super-dars. The superdnamas Ex. PW 10/1 and Ex PW 10/2 relate to the herbs entrusted to Mar-bans Lal PW-9 and Panchhi superdars respectively. Superdnamas Ex. PW-10/3 and Ex. PW-10/4 relate to herbs, entrusted to Atma Ram PW-5 The superdnamas relating to herbs, entrusted to Channa Ram PW-11, Babu Ram DW 1 and Durga Dass were not produced. The weight of the herbs, entrusted to the aforesaid persons, was given in the Writ-Petitions filed in this Court. Copies of the Writ-Petitions are Ex PW-16/L and Ex. PW-16/M. The weight, given in the Writ-Petitions, was not challenged on behalf of the appellant. From the superdnamas Ex. PW-10/1 to Ex. PW-10/4 and and the Writ-Petitions, the weights of the herbs, seized, turn out to be as follows:

Mds.

Srs.

1.

Dhoop

235

2

2.

Mushkbala

1

-

3.

Belladona

7

-

4.

MithlPatis

38

4

6.

Kaur

30

-

6.

Bankakm

5

16

17. The respondent had, also, claimed the value of 8 bags of Tuth herb. There is no evidence that the herbs, seized, included 8 bags of Tuth Neither the superdnamas Ex, PW-10/1 to Ex, PW-10/4, nor the Writ-Petitions Ex. PW-15/L and Ex. PW-15/M make any reference to the Tuth herb.

18. The market rates of the above, mentioned herbs are contained in the statement of Kishen Chand PW-8. He was a partner of a firm carrying on business in medicinal herbs. According to the evidence of Kishen Chand, the market rate, per maund of Dhoop, Mush-kbala, Belladona, Mathi Patis, Kaur and Ban-kakuru was. respectively, Rs. 80/-, Rs. 50/-, Rs. 245/-, Rs. 300/. Rs. 93/-. and Rs. 260/-. The evidence of Kishen Chand stands corroborated by the entries, from the books of account, of the firm. The value of the herbs seized, at the above rates, comes to Rs. 36,193. The respondent was entitled to get this amount as compensation.

19. The learned Senior Subordinate Judge, though he accepted the details of the weight of the herbs, given bv the respondent and also the rates deposed to by Kishen Chand PW 8. did not award Rs. 36,193/-, as compensation. but awarded only Rs. 21,000/-, as in his opinion, all the herbs were not fresh The opinion of the learned Senior Subordinate Judge is a mere conjecture and is not based on any evidence. The respondent was entitled to get the full value of the herbs, seized. But he was not entitled to get any interest on that value as there were no equitable considerations for the award of interest

20. So far as the objection, taken up on behalf of the appellant, that the suit of the respondent was barred bv time, is concerned, the learned counsel for the parties agreed that Article 49 of the Limitation Act. 1908, governed the case. The difference arose, with respect to the starting point of limitation. It was contended, on behalf of the appellant, that the seizure of the herbs was wrongful from the start and that limitation commenced to run from April to August, 1951 and that the suit, which was instituted on the 25th October. 1957. was clearly barred bv time. On the other hand, it was contended, on behalf of the respondent, that he claimed compensation for the decaying of the herbs on account of the negligence of the officials of the appellant and that the deterioration of the herbs being a continuing wrong, a fresh period of limitation began to run at every moment of the time during which the wrong continued. According to the respondent, the wrong had continued upto the year 1955 when the herbs had been totally decaved and the suit was within time from that year The respondent claimed compensation for the loss of herbs, seized. The herbs were daily deteriorating. The injury to the herbs was a continuing wrong, within the meaning of Section 23, Limitation Act. 1908.

It was held in Firm Sitaram Bindraban v. Governor-General in Council, AIR 1947 Nag 224 that deterioration of goods due to continued negligence it a continuing wrong. As the deterioration of the herbs, seized, due to the negligence of the officials, was a continuing wrong, a fresh period of limitation began to run, under Section 23, Limitation Act, at every moment of the time during which the deterioration continued. The deterioration would be deemed to have continued, at least, upto the 27th August, 1954, the date on which the order for restoration was made, if not upto the year 1955. The earliest point, from which limitation could start to run, against the respondent, was 87th August, 1954. Excluding two months' time for notice under Section 80 C. P. C., the suit of the respondent, which was instituted on 26th October, 1957, was within time.

21. It was also contended, on behalf of the appellant, that notice under Section 80 C. P. C., was not properly served on it. Ex. P-8/1 is a copy of the notice, under Section 80 C. P. C., addressed to the Secretary. Ministry of Home Affairs. New Delhi Ex P-1 is the postal acknowledgment receipt of the notice Shri Sat Paul PW-1, an Upper Division Clerk, in the Ministry of Home Affairs, stated that the receipt Ex. P-l bore the initials of a clerk in the Ministry and that the noticed had been received in Ministry The notice, served, ful filled all the requirements of Section 80 C. P. C., The notice was a valid one It was validly served.

22. It was next contended, on behalf of the appellant, that as the herbs had been seized at the instance of the Jammu police, the Slate of Jammu and Kashmir was a necessary party to the suit and as it was not joined, the suit should have been dismissed This contention is without any substance. A necessary party is a party, without whose presence, no effective decree can be passed in the suit It is difficult to see how a decree could not be passed in the present suit without impleading the State of Jammu and Kashmir The cause of action had arisen to the respondent against the appellant It is true that the herbs had been seized, at the instance of the Jammu police; but they were actually seized by Chamba police, from places, situated in Chamba District The Hon'ble Supreme Court had ordered the issue of the writ for restoration of the herbs against the State of Himachal Pradesh and District Magistrate Chamba The restoration order was issued by the District Magistrate, Chamba The herbs had derived in Chamba District. The liability for the decay of the herbs rested with the State of Himachal Pradesh and not with the Slate of Jammu and Kashmir The respondent could not seek any relief against the Stated of Jammu and Kashmir That State was not a necessary party to the suit, instituted by the respondent.

23. Finally, it was contended, on behalf of the appellant, that the respondent was estopped, by his act and conduct, from bringing the suit, because he had failed to take early steps to get the herbs released and they had perished on account of his laches. It is futile to contend that the respondent had not made efforts, at the earliest, to get back the herbs. As soon as the herbs were seized, the respondent had filed a petition before the Magistrate First Class, Chamba for the release of the herbs That petition was rejected. The respondent, then, filed writ-petitions, in this Court, which were also rejected. He then, went up in appeal to the Hon'ble Supreme Court. The appeals were allowed on the 22nd April, 1954, vide Ex. PW-15/O. On the 4th May, 1954, the respondent applied to the District Magistrate, Chamba for the release of the herbs The application is Ex. P-10. The restoration was ordered on the 27th August, 1954 vide Ex. P-li. It is evident from the evidence of Harnam Singh PW-7 and Harbans Lal PW-9 that the respondent had visited places of the various superdars to lake delivery of the herbs hut was unable to do so as the herbs had totally decayed The respondent was quite prompt in taking steps for the release of the herbs. He was not guilty of any laches and was not estopped from bringing the suit.

24. No other point was urged in theappeal which is dismissed with costs. As aresult of my finding that the respondent wasentitled to get Rs. 36,193/-, as compensation,the cross-objections arc partly allowed and the respondent is granted a decree for the recoveryof Rs. 36,193/-, with proportionate costs, inplace of the decree of the trial Court.


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