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HIGH COURT OF HIMACHAL PRADESH
T. RAMABHADRAN, J.
Union of India
Versus
Sansar Chand
First Appeal No. 9 of 1957
Decided On : 16-07-1959
The appeal, by a plaintiff, arises out of a suit for the recovery of a sum of Rs. 32,726/-/-, representing the balance due to him (the plaintiff) from defendants 1 and 2 (Sansar Chand and Hari Chand) on account of the sale of the right to levy octroi at Chamba for 2005 B. The remaining defendants stood sureties for defendants 1 and 2 and were accordingly impleaded in the suit. After a protracted trial, the suit was dismissed by the learned Senior Subordinate Judge, Chamba on 31-8-1957. Hence, this appeal.
Fact of the Case:
The suit had been filed before the Court Fees (Amendment) Act came into force in Himachal Pradesh. When the present appeal was filed, learned counsel for the appellant overlooked the provisions of the Amendment Act. The appeal has been filed by the Union of India, which obviously could have had no intention of evading payment of court-fees. The suit had been filed before the Court Fees (Amendment) Act came into force in Himachal Pradesh. When the present appeal was filed, learned counsel for the appellant overlooked the provisions of the Amendment Act.
Finding of the Court:
The preliminary objections, therefore must fail. It was for these reasons that on the 16th ultimo, I had indicated that the preliminary objections were not fatal to the appeal and, accordingly, I proceeded to hear the appeal on its merits.
Issues: 1. Whether the suit is barred under cl. 22 note 2 of the lease deed in suit? O.P.D. 2. Whether the surety bonds executed by the defendants 3 to 6 are illegal and without consideration? O. P. D. 3. Whether by advertising and including clauses 2, 3, 20 and 22 in the lease deed matters were misrepresented by the plaintiff and whether this resulted in losses to the defendants for which the plaintiffs are liable? O. P. D. 4. Whether the plaintiff remitted octroi in the trans-Ravi area and whether this resulted in a loss of Rs. 12,000/- to the defendants for which the plaintiffs are liable under the terms of the lease deed? O. P. D. 5. Did the defendants suffer loss of Rs. 5,500/- on account of refugees bringing with them articles liable to octroi tax and the Rehabilitation Department importing rations etc. for them, without paying octroi? If so, are the plaintiffs liable for the same? O. P. D. 6. Whether the defendants were bound to provide the defendants with a police guard on octroi posts and whether the guard was withdrawn during the lease period resulting in a loss of Rs. 2,000/- to the defendants? If so, are the plaintiffs liable for the same? O. P. D. 7. Were the complaints against the non-paying refugees dismissed on account of the illegal terms of the lease deed and did the defendants suffer a loss of Rs. 5,000/- on that account for which the plaintiffs are liable? O. P. D. 8. Whether on the imposition of cloth control the plaintiffs failed to appoint their nominee for the import of cloth which resulted in the lapse of monthly quotas? If so, did the defendants suffer a loss of Rs. 12,000/- on that account and are the plaintiffs liable for the same? O. P. D. 9. Whether the defendants are entitled to a decree for Rs. 3,774/- by way of set off? O. P. D. 10. Whether the defendants have not paid proper court-fee on the set off? O.P.D. 11. Relief. 12. Whether for the reasons stated in the written-staternet, the plaintiffs are estopped from suing? O. P. D. 13. Whether in the presence of the suit agreement the plaintiff was not competent to impose control on cloth as pleaded in the written-statement and what is the effect of the imposition on the Suit? O. P. D.
Ratio Decidendi: The surety bonds were executed by respondents 3 to 6 on 29th Baisakh, 2005 B. (corresponding to 11-5-1948 A.D.) while the Patta, Ex. D.W. 31/B, was completed on 12th Har, 2005 B. (corresponding to 25-6-1948 A.D.). The provisions of the Indian Contract Act were applied to Himachal Pradesh, including the Chamba district, by the Himachal Pradesh (Application of Laws) Order, 1948, dated 25-12-1948 and by the Merged (States) Laws Act, 1949, which came into force on 1-1-1950. It has not been shown that prior to merger any legislation parallel to the Indian Contract Act was in force in Chamba State. This all important point has been overlooked by the Court below.
Final Decision: I allow this appeal, and set aside the decision of the Senior Subordinate Judge, Chamba, dated 31-8-1957 (purporting to dismiss the suit). I grant the plaintiff-appellant a decree for a sum of Rs. 32,726/- jointly against all the defendants-respondents. The appellant will also get interest on this amount pendente lite and future at the rate of six per cent per annum, from the respondents. This would be subject to payment of the necessary court-fee. The appellant will further get its costs, here and in the Court below, from the respondents.
2. When this appeal came up for hearing at Chamba on the 9th ultimo, three preliminary objections were raised by the learned counsel for the respondents to its competency. (A) The memorandum of appeal was not properly signed or presented, since Shri L. N. Sethi was not the Government Advocate of Chamba at the relevant period. (B) Talbana had not yet been paid. (C) The appeal was time-barred because when it was presented to the Court of the Senior Subordinate Judge, Chamba (on behalf of this Court) on 29-11-1957, there was a deficiency of Rs. 351/8/- in court-fees - which deficiency was made good as late as 9-7-1958, i.e. long after the expiry of the limitation period.
3. Learned counsel for the appellant prayed for, and was granted, time to meet these objections. At the renewed hearing on 12-6-1959, an application, purporting to be under Sec. 149, Civil P. C., read with S. 5, Limitation Act, supported by an affidavit, was submitted by Mr. Sethi, counsel for the appellant. A reply thereto, supported by a counter-affidavit, was filed by Sansar Chand, respondent No. 1. Arguments on both sides were then heard on the preliminary objections. On the 16th ultimo, I indicated that there was no force in the preliminary objections and so they were not fatal to the appeal. I had promised to give my reasons later on for coming to that conclusion. I now proceed to do so.
4. (A) Mr. V. V. Mahajan for the respondents urged that the memorandum of this appeal was neither properly signed, nor presented. He pleaded that Himachal Pradesh became an Union Territory with effect from 1-11-1956, following the States Reorganisation Act, 1956. He contended that under O. 27, R. 1, Civil P. C., read with Article 289 of the Constitution and Sec. 122 of the States Reorganisation Act, the present appeal could have been filed only by the President of India or by his lawfully constituted attorney, and not by the Lieutenant-Governor.
5. Mr. L. N. Sethi for the appellant, on the other hand, pointed out that this very question has already been settled by this Court in a case inter parties (Misc. First Appeal No. 14 of 1957), decided on June 16th 1958 (Him-Pra.). Therein, I had referred to Notification No. LR 107-420/54-I dated 28-6-1955, issued by the Himachal Pradesh Government Judicial Department empowering all Collectors of districts in Himachal Pradesh to act for the Central Government in respect of all judicial proceedings.
This notification was issued, in exercise of the powers conferred upon the Lieutenant-Governor, Himachal Pradesh, by O. 27, R. 2 read with Central Government, Ministry of Law Notification No. S.R. O. 699 dated 8-4-1953. On the record of this appeal, there is a copy of a letter issued by the Assistant Secretary (Judicial), Himachal Pradesh Administration, on 20-11-1957 to the Deputy Commissioner, Chamba, conveying the sanction of the Lieutenant-Governor to the filing of the present appeal.
There is also an order of the Deputy Commissioner, Chamba, dated 27-11-1957, authorising Mr. L. N. Sethi, ex-Government Advocate, to file the present appeal, since Shri Shakti Prasad, present Government Advocate, had appeared as a defence witness in the suit on behalf of the respondents. Sansar Chand and others, and therefore he could not appropriately file an appeal on behalf of the plaintiff. Accordingly, this memorandum of appeal was signed both by Mr. T. S. Negi, then Deputy Commissioner, Chamba, as well as Mr. L. N. Sethi, Advocate, and prese
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