Himachal Pradesh High Court
Y.G. Negi (Former President vs Krishan Lal Sharma on 13 December, 2021
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
REGULAR SECOND APPEAL No.58 of 2009
Between:-
Y.G. NEGI (FORMER PRESIDENT,
N.G.Os. FEDERATION,
KINNAUR UNIT AT RECKONG PEO,
DISTT. KINNAUR, H.P.
......APPELLANT
(BY SH. DALIP K. SHARMA, ADVOCATE)
AND
1. KRISHAN LAL SHARMA
S/O SH. SUNDER RAM,
SHOPKEEPER RECKONG PEO,
TEHSIL KALPA, DISTT. KINNAUR, H.P.
2. THE H.P. NON GAZETTED EMPLOYEES
FEDERATION KINNAUR UNIT
THROUGH ITS PRESIDENT
SH. JAGAT SINGH, RECKONG PEO,
DISTT. KINNAUR, H.P.
.......RESPONDENTS
(SH. ISHAN SHARMA, ADVOCATE, FOR R-1,
SH. VIKRANT THAKUR, ADVOCATE, FOR R-2)
This appeal coming on for hearing this day, the Court
passed the following:
JUDGMENT
The civil suit filed by respondent No.1 for
recovery of money was decreed by the learned Trial Court
for an amount of Rs.70,565/- alongwith interest @ 6% per
annum from the date of filing of the suit till its realization.
The judgment and decree passed by the learned Trial Court
.
was affirmed by the learned First Appellate Court. Liability
to pay the decretal amount was jointly and severely
fastened upon original defendants No.2 and 3, i.e. present
appellant and respondent No.2. Aggrieved, original
defendant No.3 has preferred the instant regular second
appeal.
The status of parties hereinafter is referred to as
it was before the learned Trial Court.
2. Facts:-
2(i). Suit was filed by the plaintiff against the
defendants for recovery of Rs.70,565/- alongwith interest of
Rs.19,053/- upto 31.8.2005. The plaintiff alleged that
under the order of defendants No.2 and 3, he had supplied
electrical items valuing Rs.54,594/- on 17.01.2004 for
installation in a building for the use of defendants No.2 and
3. The said electrical items were got installed by him in the
building through labour by incurring a cost of Rs.15,971/-.
Despite his repeated demands, defendants No.2 and 3 did
not pay the contracted amount to him. The plaintiff
accordingly prayed for recovery of Rs.89,618/- alongwith
interest @18% per annum.
2(ii). Defendants No.2 and 3 submitted that the
.
plaintiff was engaged by them for electrification of the
ground floor of the building, however, the electrical items
supplied by him were not of standard quality. The payment
for the supplied items could be made to the plaintiff only on
the basis of value as assessed by the competent authority of
the Himachal Pradesh Public Works Department (HPPWD).
The Assistant Engineer (Electrical), Electrical Sub-Division
HPPWD Reckong Peo, assessed the cost of electrification
provided by the plaintiff to the tune of Rs.36,027/-. The
defendants were ready to give this amount to the plaintiff,
however, he had refused to accept the same.
2(iii). After considering the pleadings, evidence and
submissions made by the parties, learned Trial Court
decreed the suit on 01.05.2008. The plaintiff was held
entitled to recover an amount of Rs.70,565/- alongwith
interest @ 6% per annum from the date of filing of the suit
till its realization. Liability to pay the amount was jointly
and severely fastened upon defendants No.2 and 3.
Aggrieved, defendants No.2 and 3 preferred an appeal
against the judgment and decree dated 01.05.2008.
Learned First Appellate Court vide its judgment and decree
dated 19.11.2008, affirmed the judgment and decree
passed by the learned Trial Court. Defendant No.2, i.e. H.P.
.
Non-Gazetted Employees Federation, has accepted the
verdict and did not assail it any further. However, feeling
aggrieved, defendant No.3 has preferred the instant second
appeal.
3. The instant appeal was admitted on 12.02.2009
on following substantial questions of law:-
"1. Whether the findings of the Ld. Courts below
are perverse based on misreading of oral and
documentary evidence, particularly exhibit
P-3 and exhibit P-4, and also statement of
PW1 Sh. Krishan Lal?
2. Whether the judgments of Ld. Courts below
are vitiated and not in accordance with Order
20 Rule 5 C.P.C. in not giving the finding
issue-wise or critically and independently
examining evidence separately on issues and
deciding each issue separately?
3. Whether the findings of the Ld. Courts below
are vitiated for non-consideration of
application under Order U/O 41 rule 27
C.P.C. for summoning of original Assessment
Report?
4. Whether both the Ld. Courts below have erred
in law by relying upon the documents exhibit
P-3 and exhibit P-4, which had not been
proved in accordance with the provision of
Indian Evidence Act 1872 and no reliance
could have been placed upon such documents
being inadmissible in evidence?
.
5. Whether the findings of both the Ld. Courts
below are vitiated and unsustainable in the
eyes of law by decreeing the suit against the
appellant being the president of Federation in
individual?"
During hearing of the case, learned counsel for
the appellant did not press substantial Questions of Law
No.2 to 5 and only argued on Question of Law No.1.
4.
I have heard learned counsel for the parties and
gone through the record. Question of Law No.1 formulated
in the instant appeal is essentially a question of fact, which
can be answered on the basis of pleadings and evidence
adduced by the parties. Following is relevant in this
regard:-
4(i). It is not in dispute that defendants No.2 and 3
had engaged the services of the plaintiff for electrification
work of the building in question. It is also not in dispute
that the plaintiff had supplied electrical items and
installation was also got done by him in the building.
4(ii). Ext. P-3 and Ext. P-4 are the copies of the bills
dated 17.01.2004. It is evident from the perusal of these
bills that the electrical items to the tune of Rs.54,594/-
were supplied by the plaintiff to defendants No.2 and 3.
Ext. P-4 is a bill amounting to Rs.15,971/-, which
.
pertained to labour charges paid by the plaintiff to the
labour for installation of the electrical items. While
appearing in the witness box as PW-1, the plaintiff had
produced the original bill book and stated that he had
executed the electrification work of the building of
defendants No.2 and 3.
4(iii). Sh. Duni Chand appeared as PW-3. He stated
that he was employed by the plaintiff for installing the
electrical items and that his labour charges were to the
tune of Rs.15,971/-
4(iv). Defendant No.3 (present appellant) appeared in
the witness box as DW-2 and stated in his cross-
examination that the payment against the bill dated
17.01.2004 amounting to Rs.54,594/- and bill dated
31.01.2004 for an amount of Rs.15,971/- had to be made
by him (DW-2) to the plaintiff and that this payment was
still outstanding.
4(v). Ext. DW-2/A, i.e. bill dated 27.01.2004, details
the cost amount of electrical items as Rs.70,565/-. The bill
is similar to Ext. P-3. The Assistant Engineer (Electrical),
Electrical Sub-Division, HPPWD Reckong Peo may have
assessed the work done by the plaintiff at Rs.36,027/-,
however, on the basis of this assessment, it cannot be held
.
that the plaintiff is entitled to recover only the assessed
amount. The plaintiff was not associated at the time of
carrying the measurement and preparation of the
assessment report. This is admitted by the Junior Engineer
Sh. S.R. Tomar (DW-3) and Sh. Kul Bhushan (DW-4), who
carried out the assessment work. Additionally, the
assessment of the electrification work was got carried out
by defendants No.2 and 3 after the plaintiff had already
raised a dispute with the said defendants with respect to
his payment. Therefore, the assessment report is of no help
to the appellant. Defendant No.3 has not filed any appeal
against the judgment and decree passed by the learned
First Appellate Court.
Both the learned Courts below have correctly
appreciated the oral and documentary evidence including
Ext. P-3 and P-4 as well as statement of PW-1, i.e. plaintiff.
Question of Law No.1 is answered accordingly against the
appellant/original defendant No.3.
For the foregoing reasons, I find no merit in the
instant appeal and the same is accordingly dismissed. The
judgments and decrees passed by both the learned Courts
below in decreeing the suit filed by the plaintiff, are in
accordance with law and based on proper appreciation of
.
pleadings and evidence adduced by the parties. No
interference is thus called for.
Jyotsna Rewal Dua
December 13, 2021 Judge
Mukesh
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