M/S Ram Baksh Dayal Chand vs Uoi & Anr
2012 Latest Caselaw 1281 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 387/2002

%                                                     24th February, 2012

      M/S RAM BAKSH DAYAL CHAND                   ..... Appellant
                   Through : Mr. Randhir Jain and Mr. Dhananjai
                             Jain, Advocates.

                   versus

      UOI & ANR                                              ..... Respondents
                            Through :    None.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?



VALMIKI J. MEHTA, J. (ORAL)

C.M. No. 21490/2011 (restoration)

For the reasons stated in this application, the application is allowed

and the present appeal is restored to its original number.

C.M. stands disposed of.

RFA No. 387/2002

1. This Regular First Appeal (RFA) filed under Section 96 of Code of

Civil Procedure, 1908 (CPC) impugns the judgment of the trial Court dated

6.2.2002 dismissing the suit for recovery of Rs.2,18,046/- filed by the

appellant/plaintiff on the allegation that when the appellant was illegally

evicted by the respondent/Union of India (UOI), Ministry of Defence, his

goods were damaged and, therefore, the entitlement to the claim for

damages.

2. The facts as pleaded by the appellant in the plaint are that the

appellant was given a plot for storage of goods behind the bunglow No.T-2,

Officers Enclave, Dhaula Kuan, New Delhi. It was pleaded that the

appellant/plaintiff has been occupying the piece of land for the

performance of various contracts awarded to it by the respondents since the

year 1986. It was then pleaded that on 19.8.1996 the officer-in-charge,

Rajputana Rifles, Regimental Centre, along with various persons under his

command, suddenly without any notice, whether verbal/oral or in writing,

started dismantling and destroying the temporary stores etc. It was pleaded

that the acts were wrongful acts and this caused loss to the

appellant/plaintiff and, therefore, a legal notice dated 22.8.1996 was served

claiming damages on account of excessive use of force and power. The

subject suit was filed as the respondent/Union of India, Ministry of

Defence did not pay the damages which the appellant/plaintiff claims to

have suffered.

3. The respondents/defendants filed the written statement and pleaded

concealment of facts on behalf of the appellant/plaintiff. It was pleaded

that the appellant/plaintiff had filed a suit No. 603/1993 in the Court of a

Civil Judge, First Class, Tis Hazari Courts, Delhi for permanent injunction

and no interim stay was granted and, thereafter, the appellant/plaintiff had

filed a writ petition in the High Court. During the pendency of the

proceedings in the writ petition at High Court an interim stay was granted

which was, however, vacated on 19.8.1996. It was pleaded that, thereafter,

the defendants/respondents went to the site and took over the possession

without causing any alleged damage, as was pleaded by the

appellant/plaintiff.

4. After the pleadings were complete, the trial Court framed the

following issues:-

"1. Whether the plaintiff is entitled to recover Rs.2,18,046/-

with interest from the defendants as alleged? OPP

2. Whether the plaintiff has no cause of action to file the suit? OPD

3. Whether the plaintiff served the defendants with notice u/s 80 CPC? OPP

4. Whether the suit is time barred? OPD

5. Whether the plaint is signed, verified and instituted by a duly authorised person? OPP

6. Relief?"

5. The trial Court has given the relevant findings while dealing with

issue Nos. 1 and 2 from paras 10 to 13 of the impugned judgment, which

read as under:-

10. PW1 Jagannath Arora has testified that a contract was awarded by MES to the plaintiff on 2.1.96. The acceptance letter is Ex.PW1/B/ By this letter, the tender of the plaintiff was accepted and the contract was allotted CA No. GE/C-4/1995-96. The contention of the plaintiff is that the exectution of work under contract No. GE/C-4/1995-96 was still in progress when the demolition was carried out by the defendants on 19.8.96. The plaintiff has also produced Ex.PW1/A which is the photocopy of a "Land Rent Recovery Statement". This document shows that an amount of `2/- was received as rent for the land behind T-2 building, Officers Enclave, Part-II, Dhola Kuan for the period 1996-97 for execution of work order No.8. DW1 Snat Ram has stated that work order No.8 was completed by the plaintiff on 31.07.96. He has further stated that after completion of work, the contractor was supposed to clear the land in terms of the contract. This statement of Sant Ram has not been challenged in cross- examination. Rather PW1 Jagannath Arora has himself not denied the suggestion that work order No. 8 had been executed in July, 1996. Therefore, it shall be presumed that work order No.8 had been executed on or before 21.7.96. My attention has been drawn to the statement of Sant Ram that work order No. 16 was completed on 22.08.96. Relying on this statement, learned counsel for plaintiff has contended that the work awarded under contract No. GE/C-4/1995-96 was still in progress on 19.08.96 and there could be no justification to evict the contractor on that date. There is, however, no evidence to indicate the exact location where work order No. 13, 14, 15, 16 were being executed. If the land behind Bunglo No.T-2, had been required for execution of work orders No.13-16, the receipt Ex.PW1/A would have made a mention of those work orders also. In any case, the issue is clinched by the order passed by the Hon‟ble High Court on August 19, 1996. The Hon‟ble High Court observed that the plaintiffs were not entitled to continue after expiry of the contract and with this observation the interim injunction order was vacated. After vacation of the interim stay order on 19.08.96, the plaintiffs could not have the cheek to say that they had any right to remain in possession of the land behind T-2 building or that the defendants were not within their rights to evict them. Therefore, I have no doubt that the dismantling of the temporary structures on the land in suit and eviction of the

plaintiffs was completely in order.

11. DW3 S.K. Singh had deposed that on 19.08.96 at about 12 a.m. he received an order to evict the unauthorised occupant. He further states that he informed the plaintiff regarding the steps he was going to take. He states that he reached the spot at 1.30 p.m. and asked the plaintiff to remove whatever he could remove within two hours. No suggestion has been made to DW2 S.K. Sinha that he did not warn the plaintiff before starting proceedings of eviction. No doubt, the army authorities acted very promptly after the vacation of the interim injunction order but the haste on their part can be easily appreciated. The plaintiffs had been litigating with them for nearly three years and the army authorities could reasonably think that any delay on their part might further prolong the litigation.

12. The next question that arises is whether damage was actually caused to the property of the plaintiff and whether the defendants are liable to compensate the plaintiff for such damage. PW1 Jagannath Arora has submitted a list of the damaged property and the same is Ex.PW1/D. He has stated that he had asked the army authorities for joint inspection of the property but they declined his request. The defendants have, on the other hand, examined DW2 Sube Singh, DW3 S.K. Sinha, DW4 Kishan Chand and DW5 Anil Kumar to prove that the property of the plaintiff was damaged in the process of eviction. The defendants have produced a „No Damage Certificates‟ which is Ex.DW2/1. This certificate does not bear the signature of the plaintiff and the witnesses have explained that the plaintiff refused to sign. Learned counsel for plaintiffs has contended that Ex.DW2/1 is a fabricated document. He contends that if the document had been genuine, the defendant would have confronted the plaintiff as soon as they received the notice Ex.PW1/E. He also points out that the document was filed as late as 07.03.2001. Even if I accept the argument for a moment, the testimony of DW2 Sube Singh, DW3 S.K. Sinha, DW4 Kishan Chand and DW5 Anil Kumar will not be effaced. In any case, PW1 Snat Ram has testified that the plaintiff returned nine bags of cement on 01.10.96 five bags on 15.10.96 and four bags on 18.10.96 after completion of work order No. 13-16. If the cement bags to be used in the execution of work orders No. 13-16 had been actually damaged as the plaintiff would like me to believe, they could not have been in a position to return the same bags on the aforesaid dates. Moreover, the plaintiffs have not been able to examine any independent witness, PW1 Jagannath Arora is the solitary witness examined by the plaintiffs to prove the damage. He has an obvious stake in the success of the plaintiffs and his

testimony cannot suffice to prove the quantum of damage.

13. In view of the above discussions, I find that the plaintiff had no right to continue in occupation of the land behind T-2 building after the vacation of interim injunction by Hon‟ble High Court. The defendants were justified in taking steps to evict the plaintiffs. I also find that the plaintiffs have failed to prove actual damage. Mere filing of the list Ex.PW1/D cannot suffice to prove such damage. It is also apparent from the record that the plaintiffs suppressed material facts in the plaint. They did not say a work in the plaint about previous litigation. Considering all these facts, I hold that the plaintiffs are not entitled to recover any amount from the defendants. Issues are decided accordingly." (underlining added).

6. A reading of the aforesaid paras shows that the trial Court has noted

that there were earlier litigations between the parties, where there was an

interim stay and which was thereafter vacated on 19.8.1996. The trial

Court has also noted that the appellant/plaintiff claimed entitlement to the

site on account of contract No. GE/C-4/1995-96, however, the work order

under the same was completed on 31.7.1996 (i.e. before 19.8.96 when

eviction took place) as per the document filed and proved by the

respondents as Ex.DW1/A. The trial Court has also noted that the

arguments of the appellant/plaintiff, that work order Nos. 13-16 were still

being executed under the contract No. GE/C-4/1995-96, is not an argument

worthy of acceptance because it is not known where the exact location of

the work order Nos. 13-16 was. The trial Court has also noted that the

appellant/plaintiff failed to prove any damage, and on the contrary, the

defendants filed and proved „No Damage Certificate‟, Ex.DW2/1, which

was signed by a person who carried out the eviction and which certificate

the appellant/plaintiff refused to sign. The trial Court has also additionally

noted that if allegedly cement bags were destroyed, then there would have

been no question of the cement bags having been returned by the

appellant/plaintiff much later on different dates in October, 1996. The trial

Court, therefore, in view of the aforesaid detailed findings and conclusions,

as given in paras 10 to 13 of the impugned judgment, held that the

appellant/plaintiff had failed to prove his case and, therefore, dismissed the

suit.

7. In addition to the findings and conclusions given by the trial Court,

and with which I agree, there are following additional points which are

required to be noted:-

(i) In the contract No. GE/C-4/1995-96 which is relied upon by

the appellant/plaintiff, there is no term which has been pointed out

that the appellant/plaintiff had a right which could not be terminated

assuming the same existed, even prior to the completion of the

contract. After all, the appellant/plaintiff had no legal right to the

plot of UOI and which plot was only given to the appellant/plaintiff

for convenience of UOI to complete certain works which were

awarded.

(b) Not only the appellant/plaintiff had no right, the

appellant/plaintiff concealed in the plaint the factum with respect to

the earlier litigation of having approached the Court of law and the

fact that an interim injunction was granted in its favour which was

vacated on 19.8.1996. The appellant/plaintiff, therefore, was guilty

of concealment of material facts with respect to its eviction on

19.8.1996, and which in fact took place pursuant to the vacation of

interim order by learned Single Judge of this Court on 19.8.1996.

Obviously, having been faced with litigation for many years, UOI

wanted to play safe and, therefore, on 19.8.1996 itself evicted the

appellant/plaintiff and to which action of UOI we cannot find any

fault with.

(c) No doubt that witness, DW1, admitted that certain work order

under No. 13-16 of the contract No. GE/C-4/1995-96 was to be

completed in a few days i.e after a week or so, after 19.8.1996,

however, whether the balance work was a significant portion of the

work or an insignificant work, has not come on record. The

appellant/plaintiff was bound to have filed the work done and details

of its work order to show that, in fact, substantial work was pending

on 19.8.1996 qua the work orders issued under contract No. GE/C-

4/1995-96 for entitling appellant to continue in possession of the site

in question, but the appellant-plaintiff failed to do so.

(d) A reference to the loss of damaged materials, Ex.PW1/D, filed

on behalf of the appellant/plaintiff in the trial Court shows how

fanciful and, therefore, how baseless the claim of the

appellant/plaintiff was. This list, Ex. PW1/D, contains a huge

number of no less than 200 articles and a reference to these articles

shows that the same contains all types of pipes, RCC Collar, water

tanks, marble chips, taps, cycle and so on, and, therefore, it was

obvious that the claim had no basis whatsoever as these articles are

not such which can be damaged.

8. Learned counsel for the appellant vehemently canvassed two

arguments before this Court. The first argument was that contract No.

GE/C-4/1995-96 was continuing and, therefore, the appellant/plaintiff had

a right to continue in possession of the site in question as the rent was paid

for the entire year 1996-97. The second argument was that no adequate

notice was given to the appellant/plaintiff before commencement of

eviction from the site in question.

9. I am unable to agree with the arguments as raised on behalf of the

appellant. Firstly, the UOI had already filed and proved the document, Ex.

DW1/A which showed that work order under contract No. GE/C-4/1995-96

was completed on 31.7.1996, i.e. well before 19.8.1996 and the entitlement

to the possession of the plot/site, even as per the appellant-plaintiff, was till

the completion of the work. If excess rent stands paid the excess rent can

be recovered but appellant-plaintiff cannot continue in possession of

valuable land to which it had no title. Further, as already discussed above,

with respect to the work order Nos. 13-16 under contract No. GE/C-

4/1995-96 which is stated to have been completed in about a week or so

after 19.8.1996, one does not know what was the meaning of the contract

being completed after about a week or so after about 19.8.1996, and it is

very much possible that the witness of UOI who deposed, may have been

talking in a technical sense of the final completion. However, I would

reiterate that onus was upon the appellant/plaintiff to show that to what

extent the amount of work remained from 19.8.1996 for about a week after

that date under the work order Nos. 13-16, however, there are no work

orders placed on the record and there is no proof, whatsoever that how

much work under the work orders was complete, i.e. how much work was

incomplete, whether significant or insignificant part.

10. I, therefore, sitting in an appeal would not like to disturb the finding

that really no work would be pending as on 19.8.1996, more so because the

appellant/plaintiff had no legal title to stay in the site in question which,

admittedly, was of UOI and was given to the appellant/plaintiff only and

only to execute the contracts of UOI. Since earlier the appellant/plaintiff

was held guilty of litigation in obtaining stay order with respect to the site

in question, therefore surely the UOI was entitled to take necessary action

once the interim order in favour of the appellant/plaintiff was vacated.

11. On the aspect of the fact that appellant/plaintiff did not receive

adequate notice, I am of the opinion, that once there was a prior litigation

and the appellant/plaintiff was occupying the site in question only because

of interim orders there was no requirement of giving any further notice,

inasmuch as, the appellant/plaintiff was already at notice that he was

staying/occupying the site in question only because of the interim order.

Further, what ought to be adequate notice depends on the facts of different

cases, and in the present case, it has come through the evidences of witness

of UOI that the appellant was given two hours time to remove his goods

from the site in question. In view of the facts of the present case and

considering the history of litigation between the parties, besides the fact of

lack of any title of the appellant to the plot in question, I feel that a notice

of two hours was more than sufficient.

12. Finally to conclude, I must add that surely, everything else even if

taken in favour of the plaintiff, the plaintiff ought to have proved beyond

doubt the loss caused to him. The list of damaged material, Ex.PW1/D and

the oral statement of the appellant/plaintiff is the only evidence of the

damages and loss. As already stated above, list of 200 articles allegedly

damaged and that too on the basis of an oral deposition can hardly be said

to inspire confidence with respect to the amount of damages.

13. A civil case is decided on balance of probabilities. The balance of

probabilities in the present case shows that the trial Court was justified in

dismissing the suit. Until and unless the findings of the trial Court are

wholly illegal and perverse, this Court sitting in an appeal, ought not to

interfere with one possible and plausible conclusion which the trial Court

takes. I, therefore, do not find any reason to interfere with the impugned

judgment in appeal.

14. In view of the above, the present appeal is without any merit and is

accordingly dismissed, leaving the parties to bear their own costs. Trial

Court record be sent back.

VALMIKI J. MEHTA, J.

FEBRUARY 24, 2012 AK