Reserved On: 13-09-2022 vs Commissioner Secretary ...
2022 Latest Caselaw 1774 j&K/2

                                         S.No.1
         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                        AT SRINAGAR         1.
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                                                       CM No.713/2020 in
                                                       RFA No.4/2020

                                                       Reserved on: 13-09-2022
                                                       Pronounced on:17-10-2022
     0

Ali Mohd. Parray (age 50 yrs.) S/O Abdul                         ....Appellant/Plaintiff
Rehman Parray R/O Hardu Akad Seer District
Anantnag.
          Through :- Mr. Rizwan Bhat, Advocate.

                 V/s
1. Commissioner Secretary Department of                              ....Respondent(s)
   Rural Development Govt. of J&K Civil
   Sectt. Jammu/Srinagar;
2. Chief Engineer,             Rural Development
   Srinagar  (Rural            Engineering Wing)
   Srinagar;
3. Director Rural Development Srinagar;
4. District  Development               Commissioner
   Anantnag;
5. Additional    District               Development
   Commissioner Anantnag;
6. Executive Engineer (REW) Anantnag;
7. Block Development Officer Kahovripora.

7.
          Through :- Mr. S. Satinder Singh, AAG.
     CORAM:- HON'BLE MR. JUSTICE MOHAN LAL, JUDGE

                                   JUDGMENT

1. This Civil 1st Appeal arises out of the judgment and decree dated 23.01.2020 rendered by the court of Principal District Judge Anantnag in Civil Suit titled Ali Mohd Parray Vs State & Ors. bearing case No.209400027922015 (D.O.I 09.12.2015, D.O.D 23.01.2020) whereby suit of appellant/plaintiff has been dismissed. Being aggrieved, appellant/plaintiff has questioned the legality, propriety and correctness of the impugned judgment and decree and has sought it‟s setting aside/quashment on the following grounds:-

(i) that the appellant/plaintiff executed the work under the nomenclature "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 Under MGNEREGA Scheme for Block Khovripora", on account of administrative approval granted by the Govt. for the said work in the sum of Rs. 1,89,497/- out of which appellant has been paid only Rs. 1,36,961/- while balance amount of Rs. 52,439/- has been withheld (not paid) by the respondents which compelled the appellant to file a civil suit before the court of Principal District Judge Anantnag, which after the perusal of plaint and written statements framed as many as 8 issues in the suit, whereafter, appellant/plaintiff examined as many as 4 witnesses to substantiate his claim while respondent/defendants examined only one witness J.E concerned, but ultimately appellant‟s suit was dismissed by the trial court, the impugned judgment and decree is blatant violation of principles of law, as the same has been passed by the trial court on erroneous appreciation of evidence based on surmises, conjectures and assumptions;

(ii) that the impugned judgment and decree is unsustainable in the eyes of law as the same has been passed by the trial court against all cannons of law as enough evidence was produced by the appellant/plaintiff before the trial court for substantiating his claim, but the trial court has passed the impugned judgment/decree without any legal basis that too against the fact and evidence on record;

(iii) that the impugned judgment and decree is suffering from vice of wrong appreciation of evidence, whereas, the fact of matter is that there is total admission made by respondents/defendants in the suit and there was no legal justification for the trial court to pass the impugned judgment against the weight of evidence.

2. Before deciding the appeal in hand, it is pertinent to reflect the pleadings of the parties. For the sake of convenience, "appellant" is the "plaintiff" before the trial court, whereas, "respondents" are the "defendants".

3. Appellant/plaintiff has loaded suit against respondents/defendants way back on 09.12.2015 seeking declaration and recovery of outstanding amount of Rs. 52,439/- from the defendants on the grounds, that appellant/plaintiff in the capacity of mate executed work under name "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 Under MGNEREGA Scheme for Block Khovripora" for which administrative approval was estimated in the sum of Rs. 1,89,400/-, the bills for realization of payment was prepared by the defendant department, however, the full and final bills was approved for an amount of Rs. 1,36,962/- which was received by the plaintiff, while the balance amount of Rs. 52,439/- has been deliberately and intentionally not paid to the plaintiff. It is averred, that the work was allotted to the plaintiff and completed by him for which he incurred huge expenses to the extent of Rs. 1,89,400/-, the failure on the part of defendants to pay the balance amount due to the plaintiff constrained the plaintiff to serve notices u/s 80 CPC upon the defendants, the remaining/balance amount was not realized by the defendants in favour of the plaintiff, and despite repeated requests , failure on part of defendants compelled the plaintiff to commence suit for decree for recovery and mandatory injunction to the extent of Rs. 52,439/- with interest and cost before the trial court.

4. Respondents/defendants appeared before the trial court and filed their written statements, contending therein, that the defendant department has issued work order for execution of "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 Under MGNEREGA Scheme for Block Khovripora" to one Manzoor Ahmad Lone Secretary Panchayat Halqa Akad vide No. KB/WS/MGNEREGA/2012-13/2063-64 dated 28.01.2013 which work stands already executed for an amount of Rs. 1,36,961 which amount stands already disbursed among JOB Card Holders and material suppliers employed by the concerned Panchayat Secretary as per norms and guidelines of the scheme; suit of plaintiff is based on misconceived facts as no work ever has been allotted the plaintiff; defendants have only authorized Manzoor Ahmad Lone Secretary Panchayat Halqa Akad for execution of the said work which he already completed; bills have been prepared by the J.E. concerned for an amount of Rs. 1,36,961/- although work was estimated at the const of Rs. 1,89,400/- and the same was sanctioned in favour of Secretary Panchayat Manzoor Ahmad Lone, but the bills were prepared and submitted by J.E. concerned and name of plaintiff does not figure in the such bills. It is contended, that because no work was allotted to the plaintiff, as such no payment could be made to the plaintiff, payment of Rs. 1,36,961/- was processed by the J.E. and was paid to the said Manzoor Ahmad Lone Secretary and also to the Job Card Holders and material suppliers, nothing has remained outstanding, therefore, suit of plaintiff is based on misconceived facts.

5. On perusal of the pleadings, the trial court vide it‟s order dated 13-03-2018 framed the following issues in the suit:-

1. Whether plaintiff being a mate has executed the construction work under Flood Protection Bund near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 and the estimate of the said work was allotted to Rs. 1,89,400/- ? OPP.

2. Whether plaintiff has received only Rs. 1,36,961/- and the outstanding amount of Rs. 52439/- has not been received by the plaintiff till date? OPP.

3. Whether suit of plaintiff is legally incorrect and he suppressed the material facts in his suit, on this count suit deserved to be dismissed? OPD

4. Whether department has issued the work order for the execution of Flood Protection Bund to one person namely Manzoor Ahmad Lone Secretary Panchayat Halqa Akad vide No. KB/WS/MGNEREGA/2012-13/2063-64 dated 28.01.2013 which stands executed and the amount of Rs. 1,36,961/- has already been disbursed among job card holders as per the norms and guidelines of the scheme? OPD.

5. Whether suit is liable to be dismissed for want of prior notice under section 80 CPC? OPD

6. Whether the plaintiff has no cause of action against the defendants? OPD.

7. Whether the suit is undervalued and requisite court fee has been paid and as such suit merits dismissal? OPD.

8. Relief.....................?

6. After framing of issues, the matter between the parties went to the trial before the trial court of Principal District Judge Anantnag. In the suit before the trial court, plaintiff/respondent examine himself as his own witness alongwith 3 witnesses namely, PW-1 Muzaffar Ahmad Parray, PW-2 Mohammad Shafi Hajam & PW-3 Bilal Ahmad Ganai. On behalf of defendants (respondents) only one (1) witness DW-Showkat Ahmad Nanwai J.E/T.A Mattan has been examined. The trial court of Ld. Pr. District Judge Anantnag vide impugned judgment and order dated 23.01.2020 dismissed the suit of appellant/plaintiff in the following manner:-

"Thus keeping in mind the discussion made herein above as all the material issues have been decided against the plaintiff and as the plaintiff has failed to substantiate his claim so suit which is based on misconceived facts merits dismissal and is accordingly dismissed. There shall be no order as to costs. Office is directed to prepare a decree sheet accordingly. The file after due compilation under rules shall be consigned to records under rules."

7. I have heard ld. Counsel for the parties, perused the contents of plaint and written statements, thoroughly scanned the impugned judgment of the trial court. My issue wise finding are render as under:-

8. Issues 1,2,&4 are intertwined, therefore, they are being decided jointly. Issue No.1:- Whether plaintiff being a mate has executed the construction work under Flood Protection Bund near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 and the estimate of the said work was allotted to Rs. 1,89,400/- ? OPP.

Issue No.2:- Whether plaintiff has received only Rs. 1,36,961/- and the outstanding amount of Rs. 52439/- has not been received by the plaintiff till date? OPP.

Issue No. 4:-Whether department has issued the work order for the execution of Flood Protection Bund to one person namely Manzoor Ahmad Lone Secretary Panchayat Halqa Akad vide No. KB/WS/MGNEREGA/2012-13/2063-64 dated 28.01.2013 which stands executed and the amount of Rs. 1,36,961/- has already been disbursed among job card holders as per the norms and guidelines of the scheme? OPD.

The suit of plaintiff is, that in the capacity of mate work under the name "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 Under MGNEREGA Scheme for Block Khovripora" was allotted to him for an administrative approval of Rs. 1,89,400/-, he for the execution of the said work arranged the laborers who worked till the accomplishment of the work to the satisfaction of defendants, the bill was submitted before the department of defendants for realization of approved cost of work but the full and final bill for an amount of Rs. 1,36,962/- was paid by the defendants to him, however, outstanding amount of Rs. 52,439/- as part payment of the bill has remained outstanding against defendant‟s department. Respondents/defendants have refuted the claim of plaintiff by contending that the execution of work claimed by the plaintiff was issued to one Manzoor Ahmad Lone secretary Panchayat Halqa Akad, the said work stands already executed for an amount of Rs. 1,36,961/- , the amount stands already disbursed among job card holders and material suppliers, no work was allotted to plaintiff, suit of plaintiff is misconceived, name of plaintiff does not figure in the bills, therefore, plaintiff is not entitled to the outstanding amount in the sum of Rs. 52,439/- as claimed by him. Plaintiff Ali Mohd Parray appearing as his own witness and while supporting the averments of the plaint, has tendered evidence that in the capacity of mate the work was allotted to him for an amount of Rs.1,89,000/- for construction of "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 Under MGNEREGA Scheme for Block Khovripora", he was only paid Rs. 1,36,000/- while remaining amount of Rs. 52,439/- is outstanding against the defendants. In cross-examination, plaintiff has categorically stated that no formal order of the aforesaid work was issued to him, but in the capacity of mate he was directed to execute and complete the work by the BDO which work was inspected by the J.E. Plaintiff‟s witnesses PWs 1,2,3 namely Muzaffar Ahmad Parray, Mohammad Shafi Hajam & Bilal Ahmad Ganai in their examination-in-chief before the trial court have stated that the work was executed by the plaintiff under supervision of defendants, however, in their cross-examination they have categorically admitted that no work order was shown to them by the plaintiff regarding the allotment of work to him. From the evidence led by the plaintiff and his witnesses, it is amply clear, that the plaintiff has not placed on record any documentary evidence muchless any scrap of evidence to establish his claim that he was allotted the work under MGNEREGA Scheme for construction of "FP Bund Near Machine Ladh at Panchayat Halqa Akad for the year 2012-13 for Block Khovripora" for controlling the floods in the said year of 2012-13. Moreso, vide Annexure-A to the written statements filed by the defendants, it is clearly demonstrated that the work in question was allotted to one Manzoor Ahmad Lone Secretary Panchayat Halqa Akad Vide No KB/WS/MGNEREGA/2012-13/2063-64 dated 28.01.2013 for an amount of Rs. 1,89,000/- who completed the said work, prepared the bills for an amount of Rs. 1,36,961 which were presented for approval and the said amount has been released in favour of job card holders and other material suppliers. From the evidence led by the plaintiff and defendants in regard to proof of issues 1,2&4, it has been established that the work in question was allotted to one Manzoor Ahmad Secretary Panchayat Halqa Akad and not to the plaintiff. If an amount of Rs, 1,36,961/- was only paid to the said Secretary Manzoor Ahmad Lone against the estimated work cost of Rs. 1,89000/-, then the claim for outstanding amount of Rs. 52,439/- could have been raised by the said Secretary Panchayat Manzoor Ahmad Lone and not by the plaintiff. The doctrine of the "privity" of a contract is a common law principle which implies that only parties to a contract are allowed to sue each other to enforce their rights and liabilities and no stranger is allowed to confer obligations upon any person who is not a party to contract. "The rule of privity is basically based on the „interest theory‟ which implies that the only person having an interest in the contract is entitled as per law to protect his rights". According to Section 2(h) of Indian Contract Act 1872, a contract is an agreement between two parties enforceable by law backed by some consideration. The essence of law of contract lies in the promise which both parties have made towards each other for fulfilling their part of the contract. In the case in hand, there is no privity of contract between plaintiff and defendants, therefore, no promise has been made by the defendants to the plaintiff who being a stranger to the allotment of work order which was allotted to one Manzoor Ahmed Lone Secretary Panchayat Halqa Akad vide order No. KB/WS/MGNEREGA/2012-13/2063-64 dated 28.01.2013 cannot invoke the principle of „interest theory‟ for his claim of the outstanding amount of Rs. 52,439/-, as the plaintiff has no legal right to enforce his obligation upon the defendants. In view of the aforesaid discussion, the arguments propounded by L/C for appellant/plaintiff that the plaintiff is entitled to the outstanding amount of Rs. 52,439/- are legally unsustainable, repelled, rejected and dismissed. The trial court has decided issues 1, 2 & 4 correctly against the appellant/plaintiff and in favour of the respondents/defendants by rendering finding that the plaintiff has failed to substantiate his claim for recovery of Rs. 52,439/- against the defendants which need no interference by this court.

9. Issues 3,5,6&7 are also intertwined, therefore, they are being decided jointly. Issue No. 3:-Whether suit of plaintiff is legally incorrect and he suppressed the material facts in his suit, on this count suit deserved to be dismissed? OPD Issued No. 5:- Whether suit is liable to be dismissed for want of prior notice under section 80 CPC? OPD Issue No. 6:- Whether the plaintiff has no cause of action against the defendants? OPD.

Issue No.7:- Whether the suit is undervalued and requisite court fee has been paid and as such suit merits dismissal? OPD.

Issued no.3:-

Issue No.3 is to the effect, whether suit of the plaintiff is legally incorrect and he suppressed the material facts in his suit, on this count suit deserves to be dismissed. As issues 1,2&4 have been decided against the appellant/plaintiff and in favour of defendants, therefore, the suit of plaintiff has been held legally incorrect whereas plaintiff has failed to show any cause of action against the defendants. Plaintiff has failed to prove his alleged claim that the work was allotted to him and executed by him. Issue No.5 relates to the question whether notice u/s 80 CPC has not been served upon the defendants. The burden of proof of this issue lies on the defendants. Defendants have failed to discharge the onus, therefore, issue No. 5 has been rightly decided by the trial court in favour of plaintiff as against the defendant by holding that prior notice for filing the suit was served upon the defendants, therefore, the finding rendered by the trial court needs no interference. Issue No.6 is to the effect that whether plaintiff has no cause of action against the defendants. As discussed above, plaintiff has failed to establish that work was allotted to him, whereas, the defendants have proved that work was allotted to one Manzoor Ahmad Lone Secretary Panchayat Halqa Akad. As held above, plaintiff has establish no right to claim the outstanding amount of Rs. 52,400/- , therefore, he has no cause of action against the defendants. Issue No. 6 has been rightly held and decided by the trial court against plaintiff and in favour of defendant which needs no interference by this court. Issue No.7 is to the effect that whether suit is undervalued and requisite court fees has not been paid and as such suit merits dismissal. The burden of proof of this issue lies upon the defendants. Defendants have failed to discharge the onus of proof of this issues, therefore, issue No. 7 is rightly held and proved by the trial court against the plaintiff and in favour of the defendants, and the said finding of the trial court therefore needs no interference by this court.

10.For the foregoing reasons and discussion, the Civil 1st Appeal is found to be meritless, the same fails and is out rightly rejected and dismissed. Impugned judgment and decree of the trial court dated 23.01.2020 is upheld. All the issues have been decided against plaintiff as he has failed to substantiate his claim to the suit which is based on misconceived facts. No order as to cost. Office to prepare the decree sheet accordingly. Copy of the judgment alongwith record of the trial court be sent back forthwith for information.

11.Disposed of accordingly.

(MOHAN LAL) JUDGE Jammu 17.10.2022 Vijay

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No