Nagar Parishad Alwar, Rajasthan vs Sh. Gurmit Singh & Anr.
2014 Latest Caselaw 1315 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.166/2013

%                                                   11th March, 2014

NAGAR PARISHAD ALWAR, RAJASTHAN       ......Appellant
                 Through: Mr. B.P. Shukla, Advocate.

                          VERSUS

SH. GURMIT SINGH & ANR.                              ...... Respondents
                   Through:              Mr. Prem Kumar Singh, Advocate for
                                         respondent No.1.
                                         Ms. Nitika Bhutani, Advocate for
                                         respondent No.2.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           This Regular Second Appeal is filed against the concurrent

judgments of the courts below; of the trial court dated 4.1.2012 and the first

appellate court dated 14.5.2013; by which the suit of the respondent/plaintiff

for recovery has been decreed against the appellant (defendant no.2) for a

sum of Rs.92,793/- alongwith interest @ 10% per annum simple. The suit

has been decreed not only against the appellant who was defendant no.2 but

also against the defendant no.1 who was a contributory under the scheme.


RSA No.166/2013                                                 Page 1 of 5
 2.           The facts of the case are that the appellant/defendant no.2 took

out a scheme for feeding the poor which was known as 'Akshay Kalewa

Yojana'. As per this scheme, the poor were to be fed by giving a plate/thali

of food at Rs.10/-. An MOU dated 31.8.2007 for this purpose was entered

into between the plaintiff as party no.3, defendant no.1 as party no.2 and

defendant no.2 as party no.3. For the food thali/plate, the plaintiff was to

receive Rs.5/- from the public and an amount of Rs.2.50/- was to be received

from the appellant-Nagar Parished and an amount of Rs.2.50/- from the

defendant no.2-company which was contributing to the social purpose of

feeding the poor by making a contribution of Rs.2.50/- per plate. The

respondent no.1/plaintiff in terms of the scheme performed the scheme up to

18.3.2008 and which was for around a period of five months. Respondent

no.1/plaintiff was however not paid the sum of Rs.2.50/- per plate/thali from

the defendant no.1/company for various months and which amount totaled to

a sum of Rs.92,793/-. Respondent no.1/plaintiff therefore filed the subject

suit for recovery of this amount alongwith interest.


3.           The courts below have held that no doubt as per the MOU dated

1.9.2007 liability for an amount of Rs.2.50/- each was separately upon the

appellant/defendant no.2 and the respondent no.2/defendant no.1, however

RSA No.166/2013                                                Page 2 of 5
 this position underwent a change in terms of the office order of the

appellant/defendant no.2 dated 13.3.2008 and which reads as under:-


  "    Office of Nagar Parished, Alwar (Rajasthan)
                   (Office Order)
      Akshay Kaleva Scheme was started in the month of June, 2007
  according to order received from Autonomous Administration
  Department. In the scheme Rs.5/- was to be incurred by the
  beneficiary, Rs.2.50/- was to be incurred by the Nagar Parished and
  Rs.2.50/- was to be incurred by Omway Buildestate, New Delhi. No
  amount as consented Rs.2.50/- per persons has been paid by Omway
  Builders from November, 2007 till today. At present Omway Builders
  has shown its incapability to pay such amount due to financial
  problems.
      At present Akshay Kaleva Scheme is on the verge of closure due to
  non-receipt of contribution. Thus instruction has been received from
  Chairman of Nagar Parished that contribution of Omway India of
  Rs.8652/- and Rs.9892/- total amount of Rs.18544/- for the month of
  November, 2007 and December, 2007 for the centre of Akshay Kaleva
  at UTI community Centre be approved to be given to Gurmeet Singh by
  Nagar Parished. Upon receipt of amount from Omway Builders the
  amount will be deposited in the account of Parished and will not be
  given to contractor.
                                            Sd/-
                                      Commissioner
                                      Nagar Parished, Alwar
                                      Date-13.3.2008"

4.           Relying on the aforesaid admitted document being the office

order of the appellant dated 13.3.2008, the suit has been decreed under Order

12(6) CPC against the appellant for the sum of Rs.92,793/- alongwith

interest.
RSA No.166/2013                                                Page 3 of 5
 5.           In this case, though originally a defence of territorial

jurisdiction was taken up, but the same was not pressed inasmuch as the

issue of territorial jurisdiction though taken in the written statement was not

argued at the time of passing of the judgment by the trial court on 4.1.2012.

The fact that this issue was not pressed before the trial court becomes clear

from the fact that no application was filed before the trial court that issue of

territorial jurisdiction was argued/pressed but not decided. Also, no ground

was raised in the grounds of appeal by the appellant in the first appeal that

the issue of territorial jurisdiction was pressed before the trial court. Further,

the issue of territorial jurisdiction was not even pressed/argued before the

first appellate court because the judgment of the first appellate court dated

14.5.2013 does not deal with this aspect and no application has been filed

before the first appellate court that the issue of territorial jurisdiction was

argued but was not decided by the appellate court. Issues of pecuniary and

territorial jurisdiction of the courts are such rights which can be waived and

this is specifically provided in Section 21 of Code of Civil Procedure, 1908

(CPC). Therefore, the objection as to territorial jurisdiction having not been

pressed before the courts below, the same is deemed to have been given up

and no objection can be entertained by this court for the first time in this

Regular Second Appeal.
RSA No.166/2013                                                    Page 4 of 5
 6.           So far as the issue of whether there is an admission under Order

12 Rule 6 CPC for decreeing of the suit, in my opinion, the order of the

Nagar Parished dated 13.3.2008 makes the issue clear. The appellant had

very rightly taken over the liability of the defendant no.1 in the subject case

because after all it is not as if the plaintiff/respondent no.1was a very rich

person. The plaintiff was only providing food as per the scheme for feeding

poor persons at Rs.10/- per plate/thali. Appellant therefore in amendment of

terms to the contrary in the MOU dated 1.9.2007, issued its office order

dated 13.3.2008 to pay the plaintiff, and thereafter for the amount to be paid

by the defendant no.1 in the suit (respondent no.2 herein) to the appellant

herein and which was to be adjusted against its dues.

7.           A second appeal under Section 100 CPC is maintainable only if

a substantial question of law arises. In my opinion, once the order dated

13.3.2008 shows that the appellant took over the liability of the defendant

no.1 in the suit, then, no substantial question of law arises for the concurrent

judgments of the courts below to be interfered with.

8.           The Regular Second Appeal is therefore dismissed, leaving the

parties to bear their own costs.


MARCH 11, 2014                          VALMIKI J. MEHTA, J.

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