Pratibha Prakash Bhaban vs State Of Orissa & Another
2021 Latest Caselaw 8338 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                            C.R.P. No.214 of 2002


        Pratibha Prakash Bhaban, Bijipur,       ....             Petitioner
        Represented by it's
        owner/Manager, Braja Sundar
        Patnaik (since dead), through his
        LRs;
           (a) Prema Lata Patnaik.
           (b) Pravati Mohanty.
           (c) Pranati Patnaik.
           (d) Prabeen Patnaik.
           (e) Prasant Patnaik.

                                   M/s. P.V. Ramdas, P.V. Balakrishna,
                                                           Advocates

                                     -versus-
        State of Orissa & another.              ....     Opposite Parties
                                                Addl. Standing Counsel

                  CORAM:
                  JUSTICE S. PUJAHARI
                                   ORDER

Order                             10.08.2021
No.
  25.   1.      This   civil    revision   is   directed    against   the

judgment and decree dated 16.07.2002 and 26.07.2002

respectively in Money Appeal No.3 of 2000 (Money

Appeal No.11 of 1999 GDC) rendered by the learned 1st

Addl. District Judge, Berhampur, whereby and

whereunder the Appeal of the petitioner, namely, Braja

// 2 //

Sundar Patnaik (deceased) (hereinafter referred to as

the "original petitioner"), representing Pratibha Prakash

Bhaban, Government Order Supplier, was dismissed.

2. Heard the learned counsel for the petitioners and

the learned Addl. Standing counsel appearing for the

State. Perused the relevant papers on record.

3. Be it mentioned here that upon demise of

original petitioner, the owner of Pratibha Prakash

Bhaban during pendency of this civil revision, his legal

representatives have been arrayed as petitioner nos.1(a)

to 1(e).

4. The facts leading to the present civil revision are

as follows:-

The original petitioner was the plaintiff and the

opposite parties were defendants in M.S. No.345 of

1994 on the file of the court of the learned Subordinate

Judge, Berhampur. The opposite party no.2 in his

official capacity as B.D.O., Podia, placed Government

order under Ext.1 before the original petitioner, who

was a Government order supplier, to supply Forms and

// 3 //

Registers for use in the office of opposite party no.2. The

said order for supply of articles was made on the agreed

terms and conditions as well as the rate quoted by the

original petitioner, with a stipulation to supply the

articles and receive payment at Berhampur. The

opposite party no.1 having placed the order, the original

petitioner supplied the articles in dispatching the same

to the office of the opposite party no.2 on 14.05.1991

and 27.05.1991 by Carry Co. Transport accompanied

by T.R. Nos.116X2 dated 27.5.1991 and 91X2 dated

14.05.1991 through registered post with A.Ds. which

were received by opposite party no.2 on 01.06.1991 and

20.05.1991. The receipt of the articles was

acknowledged on 27.07.1991 by opposite party no.2 by

sending a letter. On 30.12.1991 the original petitioner

sent a letter to opposite party no.2 requesting to pay bill

amount after deducting the amount of short supply of

forms, as pointed out by the letter on his

correspondence made on 24.07.1991. The opposite

party no.2 though received such bill, did not pay any

heed for making payment which led the original

// 4 //

petitioner to issue notice under Section 80 of C.P.C.

Since the opposite party no.2 failed to make payment

despite such statutory notice, the original petitioner

filed the suit claiming the bill amount of Rs.12,445/-

with pendentilite and future interest @20% per annum

towards damage from the opposite parties.

5. The opposite parties contested the suit and filed

their written statement. While the opposite parties have

admitted as to placement of order by them with the

original petitioner, yet they denied to have agreed to the

mode and place of payment as well as the terms and

conditions of the supplier. Besides, a challenge was

made as to the maintainability of the suit for want of

territorial jurisdiction. It was their specific case that in

terms of their order under Ext.1 although the original

petitioner was required to supply one Book containing

100 Forms, yet he supplied 100 books, each containing

100 forms in violation of the supply order. The said

facts having been brought to the notice of the original

petitioner with a request to take back 99 books

(registers) which were supplied beyond the order, the

// 5 //

original petitioner did not take back the said excess

quantity, rather he submitted the bill asking for

payment. The opposite parties are not liable to pay for

the excess forms supplied by the original petitioner. It

was pleaded that the opposite party no.2 sent demand

draft of Rs.7,495/- on 19.09.1995 which was actually

payable to the Supplier after deducting the cost of

excess quantity from his credit bill. The original

petitioner having already received the amount, he has

no claim against the opposite parties.

6. The learned trial court formulated the following

issues;

"(1) Has the plaintiff supplied the materials as per the order placed by the defendant No.2 ? (2) Is the plaintiff entitled to the amount claimed for the excess quantity supplied by him ?

(3) Is the plaintiff entitled to interest ?

      (4)    Is the suit is maintainable ?
      (5)    Is the suit barred by law of limitation ?
      (6)    Has this Court got jurisdiction to entertain
             the suit ?
      (7)    To what relief ?"

7. Besides the original petitioner was examined as

P.W.1, as many as 13 documents were tendered in

evidence, whereas neither any oral evidence was

// 6 //

adduced nor any document exhibited on behalf of the

opposite parties. The learned trial Court on

consideration of the respective pleadings of the parties,

and the evidence, both oral and documentary, found

under Issue Nos.1, 2 and 3, that the original petitioner

was entitled to receive the claim amount of Rs.12,445/-

towards the cost of material supplied @10% interest, yet

the trial Court dismissed the suit with a finding that the

Court lacked territorial jurisdiction to decide the

dispute. Feeling aggrieved, the original petitioner

preferred appeal which was also, ultimately, dismissed

by the impugned judgment and decree.

8. It is apposite to mention here that the learned

appellate Court while holding that the trial Court has

the territorial jurisdiction to decide the dispute, on a

consideration of the evidence and pleading of the

parties, set-aside the findings of the learned trial Court

on Issue Nos.1, 2, 3 and 6 in holding that the original

petitioner is not entitled to get any amount from the

opposite parties.

// 7 //

9. The learned counsel appearing for the original

petitioner contended that the learned appellate Court

on a misconception of point of law and wrong

appreciation of evidence, reversed the affirmative

findings of the learned trial Court on vital issues which

ought not to have been interfered with, inasmuch as

those affirmative findings of the learned trial Court were

not challenged by the opposite parties by way of any

cross-objection. The original petitioner did not file

appeal against the issues involved in the suit which

were answered in his favour, rather the whole challenge

in the appeal was only against the finding with regard to

Issue No.5. Since the appeal before the appellate court

was confined to the territorial jurisdiction of the Court

which was negated by the learned trial Court, the

learned appellate court could not have ventured to

disturb the findings, not challenged by either side. The

learned appellate court in embarking upon the entire

gamut of the case and especially to the issues as

already answered in favour of the original petitioner,

reversed the findings on such vital Issue Nos.1, 2, 3 and

// 8 //

6 in utter violation of Order-41, Rule-22 of C.P.C. On

merit, it was the contention of the original petitioner

that the learned appellate Court having lost sight of the

contents of Ext.1 and its legal efficacy, more

particularly when it remained unchallenged, came to a

conclusion that "Form no.1-100 books" was not under

the supply order. The said finding of the learned

appellate Court being contrary to law and against the

weight of evidence, is liable to be set-aside.

10. To defend the impugned judgment and decree to

be legal, it was contended that the learned appellate

court did not exceed its jurisdiction whatsoever in

reversing the finding of the learned trial Court under

Issue Nos.1, 2, 3 and 6 as Order-41, Rule-33 of C.P.C.

confers on the appellate Court wide and unlimited

jurisdiction, to decide the right of the parties if it is

required to be done irrespective of any cross-appeal or

cross-objection. The findings of the learned appellate

Court being based upon the evidence with rational

reasoning assigned, do not call for any interference by

this Court in this civil revision.

// 9 //

11. It is not disputed that the opposite party no.2

had placed order under Ext.1 to supply different

articles, as specified therein. The only dispute of the

opposite parties was that Form no.1-100 books each

100 forms was not included in their supply order,

rather Form no.1-100. So, they are not liable to pay the

cost of excess materials, i.e., additional 99 books

supplied. Since there has been no dispute as to the

facts that the original petitioner being the proprietor of

Pratibha Prakash Bhaban and carrying business at

Berhampur and order was placed by opposite party

no.2 from his office of Podia and in pursuance of the

supply order, some articles were received, and the

payment, as made through demand draft, was received

by the original petitioner at Berhampur, the learned

appellate Court appears to have proceeded in a right

direction in holding that a part of the cause of action

arose in the territorial jurisdiction of Berhampur. This

aspect of the case was not dealt with in right

perspective by the learned trial Court, although the

aforesaid facts indicating accrual of part of cause of

// 10 //

action at Berhampur are undisputed. The learned trial

Court could ought not to have lost sight of the

provisions of Section 20 of C.P.C. in the backdrop of the

undisputed facts. This Court does not find any

infirmities or perversity in the findings of the learned

appellate Court with regard to the aforesaid territorial

jurisdiction aspect. It was rightly held in the impugned

judgment that the learned Courts at Berhampur have

the jurisdiction to decide the dispute between the

parties.

12. No cross-appeal or cross-objection was

admittedly filed by the opposite parties in the appellate

court. It was the contention of the original petitioner

that after deciding the jurisdictional aspect covered

under Issue No.5, the learned appellate Court ought not

to have disturbed the findings of the learned trial Court

with regard to Issue Nos.1, 2, 3 and 6, and ought to

have allowed the appeal in decreeing the suit.

13. The Apex Court in the case of Bihar Supply

Syndicate vrs. Asiatic Navigation and Others,

reported in AIR 1993 (SC) 2054 while dealing with the

// 11 //

scope of Order-41, Rule-33 of C.P.C., have held as

follows:-

"xxxxx (emphasis added) Really speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. Xxxxxx"

14. In view of the aforesaid exposition of law, it is

within the jurisdiction of the appellate Court to pass

such order in appeal as may require and determine any

issue although the appeal is as to the part of the decree

and the respondent or parties may not have filed any

appeal or cross-objection. The aforesaid being the

position of law, the contention of the original petitioner

that without cross-objection, the appellate Court cannot

decide an issue answered affirmatively in favour of the

appellant, is not tenable in the eye of law.

// 12 //

15. Now, question to be determined, is the appellate

court correct in holding the original petitioner is not

entitled to the amount claimed. On perusal of Ext.1, as

it appears, order was placed to supply F.P. Form no.1-

Book 100 nos. besides others. Ext.1 is tendered in

evidence without objection. The opposite parties have

admitted the pleading of the original petitioner that they

had placed order for supply of articles. Since the Ext.1

is admitted without objection and the opposite parties

do not have any dispute to the fact of placing supply

order and there being no other document produced on

behalf of the opposite parties to negate the contents of

Ext.1, the contention of the opposite parties that order

to supply F.P. Form no.1-Book 100 nos. was not made,

cannot be accepted. From Ext.10, there cannot be a

finding that no supply order was made with regard to

the aforesaid articles as it appears to have one letter

sent to the original petitioner inviting his attention to

return the excess articles sent inclusive of 100 forms

(equivalent to one register). Ext.10 being in the nature

of additional information brought to the notice of the

// 13 //

original petitioner in derogation of the content of their

own document (Ext.1), to substantiate their pleading

that Form no.1-100 book was not covered under Ext.1,

the office copy of supply order (Ext.1) could have been

brought into record, which was not done. This was

rightly pointed out by the learned trial Court. Besides,

Ext.1 is of 18.03.1991, Ext.10 is of 24.05.1991 that is

much after receipt of the articles. In such factual

scenario, visualizing the case from another angle, there

lies a breach of contract at the behest of opposite party

no.2. The supply order in the nature of invitation to

offer having been responded by original petitioner in

dispatching the articles became offer to opposite party

no.2 and the article being received under

acknowledgement constituted a legally enforceable

contract, the plea of opposite party no.2 as to non-

making of order for disputed items is not proved,

inasmuch as the said plea is contrary to Ext.1 and non-

payment of bill by opposite party no.2 after having

received the articles, amounts to breach of contract.

// 14 //

16. In the aforesaid circumstances, when Ext.10 is

in derogation of Ext.1 and since order is proved to have

been placed for supply of the disputed F.P. Form no.1-

Book 100 nos. receipt of which was also acknowledged,

the opposite parties cannot escape their liability to pay

for the received items. The learned appellate court failed

to appreciate the case in proper perspective and erred in

reversing the finding of the learned trial Court with

regard to Issue Nos.1, 2 and 3.

17. In the wake of the above discussion, while

affirming the Courts at Berhampur to have got the

territorial jurisdiction to decide the matter and the

petitioners are entitled to the relief claimed, the

impugned judgment and decree of the learned appellate

Court are, accordingly, interfered with. The suit of the

petitioners deserves to be decreed. The Civil revision

succeeds.

18. Resultantly, it is directed that the opposite

parties shall make payment to the tune of Rs.12,445/-

(rupees twelve thousand four hundred forty-five) to the

original petitioner with ten percent interest from July,

// 15 //

1991 till date, however, subject to adjustment of

Rs.7,495/- (rupees seven thousand four hundred

ninety-five), if already received by latter, under Bank

Draft No.116289 dated 19.12.1995 (as reflected in

Ext.13).

19. L.C.R. along with a copy of this order be returned

forthwith.

Urgent certified copy of this order be granted on

proper application.

( S.Pujahari ) Judge MRS