K.Sriramamurthy vs Col.,/Chairman,Presidential ...
2021 Latest Caselaw 1513 AP

             IN THE HIGH COURT OF ANDHRA PRADESH

                                  ***

A.S.No.1983 of 1996 & A.S.M.P.No.1109 of 2016

Between:

1. K.Sriramamurthy ... APPELLANT AND

1. State of A.P. rep.by its then Collector/Chairman For A.P.Residential Schools, Srikakulam & 7 others ... RESPONDENTS

Date of Judgment pronounced on : 15.03.2021

HON'BLE SRI JUSTICE M. VENKATA RAMANA

1. Whether Reporters of Local newspapers : Yes/No May be allowed to see the judgments?

2. Whether the copies of judgment may be marked : Yes/No to Law Reporters/Journals:

3. Whether The Lordship wishes to see the fair copy : Yes/No Of the Judgment?

________________________ JUSTICE M.VENKATA RAMANA MVR,J CMA No.253 of 2010

*IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

*HONOURABLE SRI JUSTICE M. VENKATA RAMANA

+ A.S.No.1983 of 1996 & A.S.M.P.No.1109 of 2016

% Dated:15.03.2021 Between:

#1. K.Sriramamurthy                                     ... APPELLANT
                                  AND

$ 1. State of A.P. rep.by its then Collector/Chairman For A.P.Residential Schools, Srikakulam & 7 others

... RESPONDENTS

! Counsel for appellants : Mr. P.V.Vidya Sagar

^Counsel for Respondents : Learned Government Pleader for appeals

<GIST :

>HEAD NOTE:

? Cases referred:

1. AIR 1914 PC 66

2. AIR 2008 GAUHATI 93

3. (2003)3 SCC 552

4. 1969(2) SCC 70

5. 1971(1) SCC 265

6. AIR 1953 SC 419 MVR,J CMA No.253 of 2010

HON'BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.1983 of 1996 & A.S.M.P.No. 1109 of 2016

COMMON JUDGMENT :

This is a regular first appeal filed under Section 96 CPC by the 2nd

defendant against the decree and judgment in O.S.No.42 of 1989 dated

27.10.1995.

2. The respondents 1 to 4 are the plaintiffs. The respondent No.5 is

the 1st defendant and the respondents 6 to 8 are defendants 3 to 5

respectively.

3. The appeal against respondents 6 to 8 was dismissed for default

by an order of this Court dated 01.02.2011.

4. The respondents 1 to 4 laid the suit against the respondents 5 to

8 and the appellant for recovery of Rs.3,00,000/- with future interest at

12% thereon from the date of filing the suit and for costs.

5. The appellant was an employee of the 4th respondent, which is a

cooperative society running mini super bazaar at Srikakulam. The

appellant worked as Special Officer therein from 17.09.1986 to

13.07.1987. He was incharge of transacting business on behalf of this

society as Special Officer including purchase and sales as well as its

administration. The 6th respondent was working in the 4th respondent

cooperative society as an accountant during the tenure of the appellant.

The respondents 7 and 8 were the Principals of the respondents 2 and 3

residential schools at about the same time.

MVR,J CMA No.253 of 2010

6. The suit against the respondents 6 to 8 was dismissed by the

impugned decree and judgment and whereas it was decreed against the

5th respondent and the appellant for Rs.3,00,000/- with costs and with

future interest at 12% p.a. from the date of the suit till realisation.

7. The 5th respondent preferred A.S.No.1154 of 1996 against this

decree and judgment. However, by judgment dated 17.08.2017 the same

was dismissed for non-prosecution.

8. The respondents 1 to 4 laid the claim against the respondents 5

to 8 and the appellant in respect of supplies of furniture required by

respondents 2 and 3 residential schools. This transaction was processed

through the 4th respondent society when the appellant was its special

officer.

9. The 4th respondent had agreed to supply furniture worth

Rs.5,99,551-20 ps. in February, 1987 to these two residential schools at

Rs.2,99,775-60 ps. Each. Their further claim is that the appellant had

placed orders with the 5th respondent to supply the furniture and an

agreement dated 05.03.1987 was entered into therefor between the 5th

and 4th respondents. It was agreed to supply the furniture made up of

teak wood and that no tenders were called for this purpose. It was also

agreed according to the respondents 1 to 4, that the 5th respondent

should directly deliver these items of furniture at his own costs to

respondents 2 and 3 for which the 4th respondent would pay to the 5th

respondent upon receiving a letter of satisfaction regarding the material

supplied from these schools. The respondents 1 to 4 specifically alleged in

the plaint that there was a conspiracy entered into by the appellant and MVR,J CMA No.253 of 2010

the 5th respondent as well as the respondents 7 and 8 whereby credit bills

were issued on 15.03.1987 in the name of these two schools for

Rs.2,99,775-60 ps. each, representing the cost of the furniture to be

supplied even before they are actually supplied. It was also alleged in the

plaint that basing on these credit bills, the respondents paid Rs.3,54,779-

80 ps. each towards costs of the furniture as well as teaching aid articles,

utensils etc., by means of demand drafts.

10. It was also alleged in the plaint that on account of the

publication in Eenadu Telugu daily newspaper dated 23.06.1987

complaining of misappropriation in respect of the material under this

agreement, alleging that cheap country wood material was supplied

instead of teak wood, to these schools, an enquiry was initiated by the

District Cooperative Officer, Srikakulam. Pursuant to the report submitted

by him and his subordinates, it was alleged in the plaint that these

substandard nature of the material was exposed. In this process the

assistance of District Industries Center, Srikakulam was taken to know the

quality of the wood materials supplied and then Manager of District

Industries Center, Srikakulam in his letter stated that the entire value of

the furniture supplied to these schools was only Rs.2,41,600/- as against

the agreed value of Rs.5,41,600/-. Thus, it was alleged in the plaint that

there was misappropriation of Rs.3,00,000/- in this process. It was also

alleged in the plaint that on account of this incident the reputation of the

4th respondent society also suffered. Therefore, it was alleged in the plaint

that the claim so made for recovery of Rs.3,00,000/- with future interest

at 12% p.a., is justified.

MVR,J CMA No.253 of 2010

11. The 5th respondent filed a written statement denying the

averments in the plaint and contended that as per the agreement dated

15.03.1987, he supplied material for which he received payments through

the 4th respondent, wherefor the respondents 7 and 8 had issued the

letters of satisfaction. Denying that there was conspiracy or

misappropriation and feigning ignorance of the alleged reports of District

Cooperative Officer and his team as well as the Manager, District

Industries Center, Srikakulam, he requested dismissal of the suit.

12. The 6th respondent also filed a written statement while denying

the claim in the plaint stating that he being a subordinate of the appellant

he was bound by his orders and that as per the instructions of the

appellant he changed serial numbers of the folios in the concerned file

without any intention to cause loss to the 2nd and 3rd respondents.

13. The 7th and 8th respondents filed separate written statements

denying their liability towards the suit claim and justifying their action in

receiving the furniture as per orders placed to the 4th respondent, which

were supplied by the 5th respondent and of payments made to the 5th

respondent. They further contended that there is no privity of contract

between themselves and the 5th respondent and that they had

transactions only through the 4th respondent. They also contended that

their action in delivering demand drafts for the amounts payable for such

supplies, which were in fact issued by the Secretary, A.P.Residential

Schools Society, Hyderabad and thus denying their complicity in the

alleged instances.

MVR,J CMA No.253 of 2010

14. In his written statement, the appellant while denying the suit

claim contended that there is no necessity for the 4th respondent Super

Bazaar to call for tenders since there are no provisions or bylaws in

relation thereto applicable to it. He further claimed that he had called for

tenders by issuing notice dated 25.02.1987 and the 5th respondent; Sai

Structures, Srikakulam; Magadapalli Sambamurthy and Sons, Srikakulam;

Pradeep Traders, Veeraghattam and Devi Furniture Works, Srikakulam

had given their tenders while a notice was also published for this purpose

in 'Mahodaya' news paper dated 28.02.1987. He further contended in his

written statement that the tender of the 5th respondent being lowest for

Rs.5,41,600/-, was accepted on behalf of the 4th respondent.

15. The appellant also stated in his written statement that he had

called for tenders to ascertain the rates since there was no material

showing the rates available with the 4th respondent and it was so done

when on behalf of the respondents 2 and 3 schools request was made by

their principals by their letters dated 23.02.1997 for supply of such

material. According to the appellant in his written statement, he had

communicated on behalf of the 4th respondent, the rates item-wise to the

respondents 2 and 3 informing that they should receive the furniture from

the 5th respondent directly upon furnishing certificates of satisfaction and

good condition. It is also stated in the written statement that payments

would be made to the 5th respondent only upon receipt of such

certificates, which terms and conditions were accepted by the respondents

2 and 4. He further stated in the written statement that the respondents 2

and 3 issued necessary certificates for this purpose and thereupon MVR,J CMA No.253 of 2010

payments were released by him on behalf of the 4th respondent society in

terms of the agreement.

16. The appellant further stated in the written statement that there

was no term and condition in the agreement dated 05.03.1987 that the 4th

respondent through him should verify the nature of supplies and their

quality and therefore his responsibility ceased in terms of this agreement

once the furniture was delivered to the respondents 2 and 3 . He also

stated in his written statement that the 4th respondent made a profit of

Rs.21,000/- in this transaction.

17. The appellant also stated in his written statement that he had

informed the Secretary of Residential Schools Society at Hyderabad about

supply of the furniture to the respondents 2 and 3 by his letter dated

23.05.1987 and also the Commercial Tax Officer, Srikakulam by his letter

dated 23.05.1987, for the purpose of levying sales tax to these sales.

Denying that there was criminal conspiracy and fraud played in the

transaction by him, he questioned the nature of enquiry conducted by the

authorities of Cooperative Department at Srikakulam including the District

Industries Center. He also stated that the 4th respondent is nowhere liable

to indemnify loss caused to the respondents 2 and 3 in these transactions.

He also questioned the very nature of the suit and its maintainability

contending that the 4th respondent had already initiated action in a

different forum filing ARC No.8 of 1988 for recovery of the alleged amount

before the Deputy Registrar, Cooperative Societies, Srikakulam (District

Co-operative Officer) and therefore, the suit as filed could not be

maintained.

MVR,J CMA No.253 of 2010

18. Basing on the above pleadings, the leaned trial Judge settled

the following issues and additional issues for trial:

"1. Whether the furniture supplied by the 1st defendant to the plaintiffs 2 and 3 in accordance with the terms of the agreement?

2. Whether the defendants played fraud in supplying the furniture to the plaintiff violating the contract?

3. Whether the plaintiffs are entitled to recover the suit amount of Rs.3,00,000/-?

4. Whether the record of the 4th plaintiff's society was tampered by the 2nd and 3rd defendants?

5. Whether the suit is bad for misjoinder of 3rd defendant?

6. Whether the suit is barred by time?

7. Whether the alleged tender notices published in 'Mahodaya' paper is an antedated and concocted subsequent to the publication of news item of alleged fraud in Eenadu daily, dated 23.6.1987?

8. To what relief?

Additional issue:

1. Whether the suit is not maintainable?"

19. In the course of trial, on behalf of the respondents 1 to 4,

P.Ws.1 to 5 were examined, exhibiting Ex.A1 to Ex.A53 in support of their

claim. The 5th respondent examined himself as D.W.1, the appellant as

D.W.2 and whereas the respondents 6 to 8 examined themselves as

D.W.3 to D.W.5 respectively.

20. Basing on the pleadings, evidence and material, by the decree

and judgment as stated above, the suit was decreed against the appellant

and the 5th respondent only.

21. Heard Sri P.V.Vidya Sagar, learned counsel for the appellant

and the learned Government Pleader for appeals for respondents 1 to 4.

Other respondents though appeared through their Advocates, did not

participate in the course of hearing.

MVR,J CMA No.253 of 2010

22. On behalf of the appellant, A.S.M.P.No.1109 of 2016 is filed

under Order-41, Rule-27 CPC requesting to receive copies of

G.O.Rt.No.1519, Agriculture & Cooperation (COOP.II), Department, dated

18.12.1995, copy of the proceedings of the Commissioner for Cooperation

and Registrar of Cooperative Societies dated 08.10.1996, a copy of order

in W.P.No.1183 of 2000 and copies of G.O.Rt.No.1296 and 189,

Agriculture & Cooperation (COOP.II), Department of 2011 and 2012

respectively in support of his contention.

23. In substance the contention of the appellant in this respect is

that in the departmental enquiry, he was exonerated of the charges, that

he had applied to his department for back wages including interest and

when interest was not granted, he approached the then Administrative

Tribunal at Hyderabad and when interest was not granted while directing

refund of the amount due, he was constrained to file W.P.No.1183 of

2000 on the file of this Court against the Commissioner of cooperation &

Registrar of Cooperative Societies, Hyderabad and three others, where the

relief was granted by an order dated 10.06.2009 directing to pay interest

from 07.08.1990 onwards at 6% p.a. It is also the contention of the

appellant that by latter two G.Os. the Government directed to permit him

to withdraw interest and also directing to pay the balance amount towards

his retiral benefits.

24. It is the contention of the appellant that in view of these

subsequent events, the purpose of filing the suit against him is lost and

the trial Court did not consider any of these questions particularly relating

to his liability in proper perspective. In those circumstances, the appellant MVR,J CMA No.253 of 2010

requested to receive these additional documents in support of his

contention.

25. These subsequent events have no bearing at this stage in the

appeal. When the respondents are continuing to contest this civil litigation

including in this appeal, these subsequent events, which occurred long

after the incidents alleged in this case, cannot have an impact. Merely

because, one of such materials referred to direction given to the

concerned to repay all his terminal benefits it did not automatically lead to

infer that the relief claimed in the suit, against the appellant stood

extinguished or abated.

26. Therefore, finding no utility and purpose to receive these

documents in additional evidence nor their reception is warranted for

ultimate adjudication in the matter in the interests of justice, this petition

is dismissed and without costs.

27. Now, the following points arise for determination:

1. Whether material on record is making out satisfactorily that

the wooden furniture supplied to respondents 2 and 3

residential schools was of inferior quality making them to

suffer loss of Rs.3,00,000/- and if the appellant is cause and

responsible for it?

2. Whether the judgment of the trial Court making the appellant

responsible for the alleged loss along with the 5th respondent

is proper?

3. To what relief?

MVR,J CMA No.253 of 2010

POINT No.1:

28. The 4th respondent Super Bazaar was established at

Srikakulam in the year 1967. The respondents 2 and 3 schools were

established in the year 1983.

29. On account of paucity of facilities like furniture and other

equipment in these schools, the Secretary A.P.Residential Schools Society

allotted funds to a tune of Rs.3,00,000/- each to these schools by its order

dated 19.01.1987 directing to utilize the same by the end of March, 1987

i.e. 31.03.1987. Therefore, these two residential schools approached the

4th respondent Society cum Super Bazaar to supply such material. Ex.A1

and Ex.A2 are the letters addressed by them respectively dated

23.02.1987 to the 4th respondent. Steps were taken thereon by the

appellant and the furniture requested was supplied through the 5th

respondent, in all, for Rs.5,41,600/-. Ex.A3 dated 05.03.1987 is the

agreement entered into between the 5th respondent and the 4th

respondent for this purpose.

30. It is the contention of the 2nd respondent that he had called for

quotations for supplies to be made and among 5 dealers, the quotation or

tender of the 5th respondent was found lowest and who was issued

necessary orders to make these supplies. It is also the version of the

appellant that the Principals of the respondents 2 and 3 schools requested

him to communicate first, the rates of the items to be supplied and terms

and conditions.

31. Credit bills were secured in Ex.A4 and Ex.A6 dated 15.03.1987

along with advance stamped receipts in Ex.A5 ad Ex.A7 from these MVR,J CMA No.253 of 2010

schools. The supplies were agreed to be made as per Ex.A3 agreement on

or before 31.03.1987. However, the 5th respondent went on making

supplies to these schools time to time. It appears that it went on upto

middle of July, 1987. Whenever supplies were received from the 5th

respondent as seen from Ex.A8 to Ex.A12, letters of satisfaction were

issued by the respective Principals of these schools. Pursuant thereto,

payments were also made time to time by means of demand drafts.

32. The whole issue cropped up on account of the publication in

Eenadu Telugu newspaper as seen from Ex.A13 dated 23.06.1987 alleging

misappropriation of the funds in these transactions. It was P.W.2, who

took upon himself to probe into this affair. He was then auditor in the 4th

respondent super bazaar. His evidence reflected that he went through the

entire file relating to these transactions and ultimately presented special

report in Ex.A16 dated 18.07.1987 to the District Collector. The report of

P.W.2 and his evidence, who allegedly unearthed the alleged fraud in

these transactions, is the sheet anchor of the case of the respondents 1 to

4 against the appellant and the respondents 5 to 8. The entire effort of

P.W.2 in this context is without issuing notice to any of the affected

parties including the appellant. Therefore, any amount of material

gathered by him and basing on which he deposed at the trial in the suit,

cannot have any effect nor outcome of such audit exercise behind the

back of the appellant can bind him in any manner.

33. Even the evidence of P.W.2, on a careful examination makes

out that the procedure which this appellant was expected to follow, which

he had set out in his written statement and in his deposition, as D.W.2,

was followed without any breach.

MVR,J CMA No.253 of 2010

34. It is in the evidence of P.W.2 that the 4th respondent entered

into agreement with the schools to supply furniture and in turn the 4th

respondent sought supplies through the 5th respondent. His evidence

further reflected that on behalf of the respondents 2 and 3, the

respondents 7 and 8 placed orders to supply furniture and it was accepted

on behalf of the 4th respondent. He also confirmed the terms and

conditions on which the appellant on behalf of the 4th respondent agreed

to supply this furniture to the schools subject to their furnishing letters of

acceptance. Ex.A35 and Ex.A36 are such letters of acceptance wherein

terms and conditions were set out, which is also deposed by P.W.2.

35. Though in many words P.W.2 tried to paint all these

transactions as outcome of deliberate distortion of facts to project as

fraud, he himself came out in cross-examination that the 4th respondent

made a profit of Rs.57,950/- through these transactions.

36. Therefore, the version of the respondents 1 to 4 that the

tenders were manipulated by the appellant as an afterthought, getting a

publication made in 'Mahodaya' newspaper and the concerned file was

tampered by re-arrangement of the folio therein as is deposed by D.W.3

(6th respondent), cannot be accepted.

37. The evidence of P.W.2 itself makes out that he had an opinion

in respect of these transactions that the appellant had misappropriated

money out of these transactions. He tried to call this misappropriation as a

'collective misappropriation'. The reason stated for this purpose is that the

wood material used for the furniture so supplied included 13 different

varieties. The specific version of P.W.2 in this respect is that the appellant MVR,J CMA No.253 of 2010

did not verify the quality of wood used for the purpose of this furniture.

Therefore, according to him he thought that the appellant also

participated in this misappropriation.

38. When the terms of agreement in Ex.A3 admittedly stated that

these items of furniture should be directly supplied to these schools and

with which the appellant did not have any role, as rightly contended for

him, the question of misappropriation does not arise more so, when they

were supported by the certificates of satisfaction and good condition

issued by the respondents 7 and 8 time to time, whenever supplies were

received by these schools.

39. P.W.2 had grouse against the appellant since the appellant had

requested not to continue his services as an auditor for this super bazaar

on account of financial burden which the 4th respondent was unable to

meet and inspite of it, he was continued. In this respect, the appellant

relied on one fact as to how P.W.2 could inject influence relying on Ex.B1

letter of then MLA of Narasannapet dated 21.03.1987 addressed to him

where a request was made to continue the services of P.W.2. It is the

version of the appellant that on account of the orders of the District

Cooperative Officer, P.W.2 continued in the super bazaar as an auditor.

40. When a person could go to the extent of getting recommended

to continue in this post from a local MLA, in spite of the special officer of

this super bazaar expressing reluctance, it speaks volumes of conduct,

character and nature of P.W.2. This instance alone is sufficient to reject

the testimony of P.W.2. In view of the instances in which P.W.2 and the

appellants were placed, during the period of these transactions, the MVR,J CMA No.253 of 2010

contention on behalf of the appellant that the whole effort of P.W.2 to

implicate the appellant in a false case cannot be overlooked nor can be

brushed aside. Therefore, no implicit reliance can be placed on the

testimony of P.W.2.

41. The complaint of the respondents 1 to 4 against the appellant

is that the quality of furniture was inferior in nature than agreed upon

under Ex.A3 and that teak wood items were not supplied. In order to

prove this fact, the respondents 1 to 4 made an attempt at the trial to

examine P.W.4 and P.W.5. They both represented the District Industries

Center, Srikakulam during that time. Their evidence is that they inspected

the residential schools at Vomaravelli and Sharemahammad Puram along

with the District Cooperative Officer and Sri Dhanalakshmi, Carpenter

Instructor attached to the District Industries Centre, Srikakulam. Their

visit to Vomaravelli was on 20.07.1997. They inspected the material so

supplied and assessed the value of the furniture in this school at

Rs.1,22,470/-. Ex.A27 statement was prepared in this context.

42. The evidence of P.W.4 and P.W.5 further is that the residential

school at Sharemahammad Puram was visited by them on 29.07.1987

where they examined the furniture so supplied. Ex.A26 was the abstract

prepared by them along with record in this context and the value of the

furniture supplied according to their estimate was Rs.1,10,129.60 ps.

43. P.W.4, as admitted by him in his cross-examination, was not

qualified to assess the quality of the wood. Though the purpose of

deputing him by then General Manager of District Industries Center,

Srikakulam to these schools was to assess the quality and quantity of the MVR,J CMA No.253 of 2010

furniture so supplied, when he did not have necessary qualification nor

technical knowledge in this respect, his version at the trial cannot

implicitly be relied on.

44. The evidence of P.W.4 further is that it was Sri Dhanalakshmi,

Carpenter instructor, himself assessed the quality of the wood and basing

on such assessment, he prepared Ex.A26 and Ex.A27 abstracts. When the

testimony of P.W.4 is that he mentioned the value of the furniture

supplied to both these schools as per the assessment of Sri Dhanalakshmi,

who also gave value of the furniture stated in Ex.A26 and Ex.A27, he

should have been examined as a witness on behalf of the respondents 1

to 4. Sri Dhanalakshmi, for the reasons best known, could not be

examined. In his place, Sri V.Bhulokam was examined as P.W.5. P.W.4 did

not refer to presence of Sri Bhulokam during any of these visits to these

schools nor his role is referred to specifically by him at any stage for the

purpose of assessment of value, quality and quantity of the furniture in

these schools. Therefore, whatever material placed with reference to

quality, value and quantity of the furniture by the respondents 1 to 4 at

the trial and their attempts to prove these facts upon examining P.W.4

and P.W.5 turned out to be an exercise in futility and fringing on falsity.

45. Added to it, when the statement of P.W.4 himself in cross-

examination is considered to the effect that most of the furniture supplied

to these schools was of teak wood as per the extracts viz., Ex.A26 and

Ex.A27, non-examination of Mr.Dhanalakshmi is fatal to their version.

Therefore, testimony of Sri Dhanalakshmi assumed any amount of

importance. In the absence of it, the material so placed including Ex.A26

and Ex.A27, cannot amount to appropriate proof.

MVR,J CMA No.253 of 2010

46. The learned trial judge has misread evidence on record and

was under the impression that Mr. Dhanalakshmi was examined at the

trial. As rightly pointed out for the appellant, on more than one occasion

the learned trial Judge has faltered in appreciation of the material and

imported certain material, which is not available on record. So the

conclusions so drawn by the learned trial Judge are without basis.

47. Therefore, on this crucial aspect, there is total failure of

respondents 1 to 4 to offer reliable and acceptable evidence. The

consequence necessary to flow from this is to reject such version.

48. The role of the appellant in the context of these transactions if

considered, in the light of the evidence on record, it is clear that he did

not have anything to do with the quality of the furniture and if proper

wood as agreed upon under Ex.A3 agreement was used for the purpose

of the furniture supplied to these schools. The terms of Ex.A3 are explicit

that the furniture should be directly transported and delivered to these

residential schools by the 5th respondent. The burden was placed upon

these schools to satisfy themselves of the satisfactory nature and good

condition of the furniture so received. Such certificates in the form of

letters as stated supra were admittedly issued to the 5th respondent.

Thereupon payments were made obtaining drafts, from the office of the

Secretary, A.P.Residential Schools Society, Hyderabad and thus the 5th

respondent was given away the dues for such supplies.

49. The whole arrangement in terms of Ex.A3 did not require

personal participation of the appellant. Nonetheless, P.W.2 pointed out

that the appellant should have looked into quality of the wood used for MVR,J CMA No.253 of 2010

this furniture. It is rather beyond the terms of the agreement in between

these parties viz., the 5th respondent and these two residential schools.

50. Further, there was never any complaint by these two

residential schools against quality of these supplies. Nor the Secretary of

the A.P.Residential Schools Society made any complaint. Thus, the whole

exercise began with the unwarranted role of P.W.2 by taking up an audit,

leading to issuance of Ex.A16 report. Without proper verification. Unable

to understand the consequences of an action proposed against the

appellant, the 1st respondent District Collector obviously was mislead and

was carried away by the impression so created by P.W.2 and then District

Cooperative Officer initiated civil action including against the appellant.

51. In the light of all these circumstances and reasons assigned,

the inference to draw is that liability of the appellant is not seen in any

manner. The learned trial Judge gravely erred in making him liable by the

decree and judgment on account of the improper appreciation of evidence

and consideration of the material on record.

52. Sri P.Vidya Sagar, learned counsel for the appellant, has been

fair in bringing to notice of this Court, the effect of dismissal of the appeal

in A.S.No.1154 of 1996 by the judgment dated 17.08.2017 by this Court.

Referring to the effect of Order-41, Rule-4 CPC r/w. Rule-33 of Order-41

CPC, the learned counsel for the appellant contended that in these

circumstances when the appeal of the 5th respondent was dismissed for

non-prosecution it cannot be construed that the decree and judgment of

the trial Court stood confirmed and when it is not based on merits. The

learned counsel also contended that such dismissal did not amount to res MVR,J CMA No.253 of 2010

judicata vis-à-vis this appeal. Thus, it is contended that dismissal of the

earlier appeal cannot be regarded as an order accepting or confirming the

decision of the trail Court.

53. Rightly, in this context, reliance is placed upon Chaudhri

Abdul Majid vs. Jawahir Lal and others1 . The observations in this

ruling in this case basing on facts are as under:

"..........The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if be had not appealed at all. To put it shortly, the only decree for sale that exists is the decree dated 8th April 1893 and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed and there is no decree of His Majesty in Council in which it has become merged....."

54. Samsul Haque Borbhuiya (D) by LRs. V. Md. Ibrahim Ali

Borbhuiya and others2 is also relied on referring to effect of Order-41,

Rule-4 CPC. Relevant observations are as follows:

"18. Admittedly, one of the several principal defendants namely, defendant No. 4, Md. Jalal Uddin Barbhuiya, preferred RFA No. 111/03 along with an application for condonation of delay in preferring the appeal. The said condonation application was dismissed for non prosecution and consequently the appeal being RFA No. 111/03 preferred by the said defendant was dismissed, meaning thereby, the decree passed against him has been upheld, as the dismissal of the application for condonation of delay and the consequent dismissal of the appeal on refusal to condone the delay as observed by the Apex Court in Shyam Sunder Sarma (supra).

This would, however, in view of the provision contained in Order 41 Rule 33 of the CPC and also in view of the aforesaid discussion, would not preclude the Appellate Court to pass a decree appropriate to the nature of dispute in an appeal filed by one of the several persons against whom a decree was made on a ground which is common to him and others, as observed by the Apex Court in Mahabir Prasad (supra). That apart the earlier appeal being RFA No. 111/03 having not been decided on merit, it will not operate as res judicata. The Appellate Court still, even though the

. AIR 1914 PC 66

. AIR 2008 GAUHATI 93 MVR,J CMA No.253 of 2010

RFA No. 111/03 has consequently been dismissed, upon rejection of the application for condonation of delay on the ground of non prosecution, has the power to pass any decree and make any order, which ought to have been passed by the learned Trial Court, reversing a joint decree appealed from on any common ground, if the appellate Court reaches a conclusion, which is inconsistent with that of the Court appealed from and in adjusting the rights claimed by the appellant, it is found necessary to grant a relief to the appellant in RFA No. 111/03. Hence, it cannot be said that the present appeal is not maintainable."

55. Chandrammohan Ramchandra Patil and others v. Bapu

Koyappa Patil (dead) through LRs. And others3 is also relied on for

the appellant. In paras 14 and 15 in this ruling, it is stated as under:

"14. Order 41 Rule 4 of the Code enables reversal of the decree by the court in appeal at the instance of one or some of the plaintiffs appealing and it can do so in favour of even non-appealing plaintiffs. As a necessary consequence such reversal of the decree can be against the interest of the defendants vis-à-vis non-appealing plaintiffs. Order 41 Rule 4 has to be read with Order 41 Rule 33. Order 41 Rule 33 empowers the appellate court to do complete justice between the parties by passing such order or decree which ought to have been passed or made although not all the parties affected by the decree had appealed.

15. In our opinion, therefore, the appellate court by invoking Order 41 Rule 4 read with Order 41 Rule 33 of the Code could grant relief even to the non-appealing plaintiffs and make an adverse order against all the defendants and in favour of all the plaintiffs. In such a situation, it is not open to urge on behalf of the defendants that the decree of dismissal of suit passed by the trial court had become final inter se between the non- appealing plaintiffs and the defendants."

56. Ratan Lal Shah vs. Firm Lalmandas Chhadammalal and

another4, Mahabir Prasad vs. Jage Ram and others5 and Narhari

and others vs. Shanker and others6 are also relied on for the

applicant in the same context.

57. Now, the legal position is clear that dismissal of earlier appeal

for non prosecution or default presented by one of the co-defendants

. (2003)3 SCC 552

. 1969(2) SCC 70

. 1971(1) SCC 265

.AIR 1953 SC 419 MVR,J CMA No.253 of 2010

cannot affect nor influence consideration of another appeal against the

same decree and judgment by one of the parties to the suit. Therefore,

this contention of the learned counsel for the appellant has to be accepted

holding that dismissal of earlier appeal of 5th appellant in A.S.No.1154 of

1996 has no bearing or effect to consider this present appeal

independently basing on the material on record.

58. Thus, on conspectus, it has to be held that the claim against

the appellant is not established nor proved making him liable, by

respondents 1 to 4.

59. Thus, this point is answered in favour of the appellant and

against the respondents 1 to 4.

POINT No.2:

60. The learned trial Judge did not appreciate the material in

proper perspective. For the reasons stated in point no.1, the decree and

judgment under appeal require interference in so far as the claim against

the appellant brought out in the suit is concerned. Consequently, the suit

against the appellant (2nd defendant) has to be dismissed. Thus, this point

is answered.

POINT No.3:-

61. In view of the findings on points 1 and 2, this appeal has to be

allowed setting aside that part of the decree and judgment went against

the appellant (2nd defendant), of the trial Court.

62. In the result, the appeal is allowed setting aside the decree

and judgment in O.S.No.42 of 1989 dated 27.10.1995 in so far as the MVR,J CMA No.253 of 2010

claim against the appellant is concerned. Consequently, the suit against

the appellant (2nd defendant) is dismissed and without costs.

As a sequel, pending miscellaneous petitions, if any, stand closed.

Interim Orders, if any, stand vacated.

________________________ JUSTICE M.VENKATA RAMANA Dt:15.03.2021 RR MVR,J CMA No.253 of 2010

HON'BLE SRI JUSTICE M.VENKATA RAMANA

APPEAL SUIT No.1983 of 1996 & A.S.M.P.No. 1109 of 2016

Dt:15.03.2021

RR