It was argued that the plaintiff was not bound to furnish particulars and that a round and general figure was all that was required. I am unable to agree. A defendant is entitled to know exactly what case he has to meet and he must be afforded an opportunity to investigate the details of the claim so that he can call evidence about it if he can, and so he can attack the plaintiff's estimate of damages as well as the basis on which it is grounded. Here a breach of certain conditions of an agreement forms the subject-matter of the plaintiff's complaint. The defendant is entitled to know which conditions and the exact manner in which they have been violated. The plaintiff claims that the breach consists in the cutting of unauthorized trees. It is obviously impossible to assess damages in such a case until the Court knows whether any trees have been cut and if so how many. The plaintiff is therefore bound to furnish the necessary particulars. The forest is his and he is in a position to know exactly what trees have been wrongfully cut.
IN THE HIGH COURT OF NAGPUR
Decided On: 28.07.1938
Appellants: Jamshed Karimuddin Musalman
Vs.
Respondent: Kunjilal Harsukh Kalar and another
Vs.
Respondent: Kunjilal Harsukh Kalar and another
Hon'ble Judges/Coram:
Vivian Bose , J.
Citation: AIR1938Nag530
1. This is a suit for damages arising out of a breach of certain conditions embodied in a contract Ex. P-1 which was executed on 26th September 1929. The document lets out the plaintiff's jungle to the defendant for a period terminating on 26th March 1931. In that interval the defendant was at liberty to cut and remove the standing timber subject to the conditions mentioned in the deed. The relevant conditions are as follows:
(1) The jangle shall be out in accordance with the Government (Forest) rules and also in accordance with the under mentioned terms:(2) The stumps shall be made in accordance with the Government rules, that is flush with the ground. We will not cause any sort of damage and if we do so we will be liable to pay the expenses.(3) Should we out the jungle in contravention of the Government rules.... we, the thekedars, will be liable and responsible therefor and will not be entitled to even a pie out of the lease money that we have already paid.(4) Should we cut any kind of wood in contravention of the terms, that is, should we out any wood (off the girth) of 1 1/2 feet or less than 1 1/2 feet, we will be liable to pay at the rate of Rs. 10 per tree to the malguzar. We will not out trees within 20 yards on either side of the nala (stream) that retains water up to the month of Jannary....(8) As regards particular kind of wood, e.g. Sagon (teak), Sal and timber, 30 trees per acre shall be left standing, while the number of trees of all kinds left standing shall be 90 per acre....(10) We will not out any trees within 20 yards from the boundary line of the Government forest.(11) If there be any irregularity of any kind in making stumps, we, the thekadars, will be liable to pay the expenses.
2. The plaintiff complained that there had been a breach of the above conditions but said that he was not able to estimate the damage properly and that it would be necessary to appoint a Government Forest Officer to do that. Tentatively however he placed the figure at Rs 2000. He furnished no particulars. The defendant denied that he had violated the terms of the agreement in any way and called upon the plaintiff to furnish particulars of the breach of which he complained. The plaintiff again stated that he was unable to specify the exact damage done and asked the Court to issue a commission, but eventually on 15th February 1932 he filed a list containing the necessary particulars. It shows breach of Cls. 4, 8 and 10 above.
3. It was argued that the plaintiff was not bound to furnish particulars and that a round and general figure was all that was required. I am unable to agree. A defendant is entitled to know exactly what case he has to meet and he must be afforded an opportunity to investigate the details of the claim so that he can call evidence about it if he can, and so he can attack the plaintiff's estimate of damages as well as the basis on which it is grounded. Here a breach of certain conditions of an agreement forms the subject-matter of the plaintiff's complaint. The defendant is entitled to know which conditions and the exact manner in which they have been violated. The plaintiff claims that the breach consists in the cutting of unauthorized trees. It is obviously impossible to assess damages in such a case until the Court knows whether any trees have been cut and if so how many. The plaintiff is therefore bound to furnish the necessary particulars. The forest is his and he is in a position to know exactly what trees have been wrongfully cut.
4. It was argued that the forest was in the possession and control of the defendant and so the plaintiff could not furnish the necessary particulars. That however is incorrect. On the date of the suit the forest was in the plaintiff's possession and all that he had to do was to go and count a certain number of stumps within a specified area and assess the value of the damage. If he had not the necessary qualifications and experience to do that himself, it was his duty to engage those who had and to come to Court with a clear cut case. I see no reason therefore for allowing a departure from the normal rule that a plaintiff must be tied down to his claim and to the particulars which he is bound to furnish in support of it. This is particularly so as the danger of subsequent fillings has clearly to be guarded against. The first Court dismissed the plaintiff's claim but the lower Appellate Court allowed a portion of it, that is to say, it decreed Rs. 1364-5-0 of the Rs. 2000 claimed, so the defendant appeals. His first ground of attack is that the suit is not maintainable at all: that S. 220(q) bars it. The foundation of this argument is that the breaches complained of also constitute breaches of the Government Forest Rules. framed under S. 202, Land Revenue Act; in fact the first clause of the agreement makes these rules applicable and according to the learned counsel for the defendant the latter part of Cl. 4 is nothing but a reproduction of R. 5(e) which is to be found at p. 704 of Kathalay's useful commentary on the Land Revenue Act. There, fore, according to the contention under consideration, this is one of the questions which is connected with and which arises out of the exercise of power under S. 202 and consequently the jurisdiction of the Civil Courts is barred. I do not agree, S. 220 debars a Civil Court from entertaining any suit or application which is instituted or made
to obtain a decision or order on any matter which the Chief Commissioner or any Revenue Officer is empowered to determine, decide or dispose of "and in particular" any question connected with or arising out of the powers under S. 202.
5. Now what decision is the plaintiff endeavouring to obtain from the Civil Court in this suit? It is clearly damages for the breach of certain conditions in an agreement. Is the Chief Commissioner or any Revenue Officer empowered to "determine, decide or dispose of" that matter either under S. 202 or by any other Section of the Act? Clearly not. S. 202(1) empowers the Chief Commissioner to make rules regulating the contract and management of the forest growth on the lands of any estate or mahal, and the right of user over such forest growth and is also entitled to attach to the breach of such rules certain pecuniary penalties. But this does not entitle him to enquire into a breach of contract and assess and award damages in respect of it. The mere fact that the same set of facts gives rise to a civil action for damages as well as to revenue proceedings under Sec. 202 does not confer jurisdiction upon him to usurp the functions of the Civil Courts, any more than a similar set of conditions entitles the Civil and Criminal Courts to trespass upon the province of each other in cases of defamation. All that the defendant can claim, as he can in an action for defamation, is that any compensation he may have been ordered to pay to the plaintiff should be taken into consideration in assessing the damages here, and also the fact that he has been exposed by reasons of the plaintiff's action (if indeed that be the case) to the trouble and expense of a double set of proceedings. It is immaterial on the view, so far as the want of jurisdiction is concerned, whether the Revenue Courts had actually proceeded against the defendant or not. I understand they had done so and had decided in his favour, but that, as I have said, makes no difference to the question of jurisdiction.
6. The next point is this. The Court ordered a commission to issue to one Garu Dayal on 12th September 1932 for ascertaining the number of trees cut by the defendant in contravention of the agreement, etc. He replied that he was unable to accept and so on 10th December 1932, a date on which the defendant was not present and when no date had been fixed for hearing, the plaintiff filed an application asking for the appointment of Mr. Pitley a Forest Ranger. This was granted the same day, behind the back of the defendant and the commission was issued accordingly. Mr. Pitley was told to submit his report by 10th January 1933 which was the next date of hearing. It is contended by the learned counsel for the defendant-appellant that the learned trial Judge ignored the mandatory provision of O. 26, R. 18 under which he was entitled to notice and that therefore the report cannot form part of the record of this case as it would otherwise be under O. 26, R. 10. There can be no doubt that the procedure adopted was irregular. It is true, O. 26, R. 9 leaves the matter to the discretion of the Court and does not provide for the presence of the parties when a commission is issued, but natural justice requires that such acts should not be done behind the back of one of the parties; S. 99, Civil P.C. also directs that no decree is to be reversed or substantially varied on appeal because of any irregularity in the proceedings which does not affect the merits of the case or the jurisdiction of the Court. Therefore what has to be seen is whether this fact has occasioned any prejudice to the defendant. I am clear it has not.
7. Defendant 1 (we are not concerned with the second here) appeared on the next day, viz. 10th January 1933, both personally as well as by counsel. The commission was not returned as it should have been and the question of his remuneration was discussed in the presence of the parties and the Commissioner was told to submit his report on or before the next hearing which was fixed for 6th February 1933. The defendant raised no objection and had ample opportunity to find out all he wanted about the matter then. Indeed this objection was not taken in either of the Courts below and we hear of it for the first time in second appeal; not only that, but the defendant, far from objecting, actually joined the plaintiff on 24th November 1933 in asking that the Commissioner be examined as a witness. As a matter of fact a summons had already been sent to defendant 1 by the Commissioner by registered letter and was received by defendant 1 on 9th January 1933, the day before the hearing of the 10th. I am satisfied therefore that no prejudice has been caused, quite apart from the letter dated 1st April 1933 from the Commissioner to the Court. This letter appears to have accompanied the report and other proceedings. In it the Commissioner states that he had summoned the defendant) through the Court but that he did not appear. However as there may be some doubt about the admissibility of this document in evidence, I do not rely on it and base my decision on the other facts given above.
8. The next objection is about the examination of the Commissioner as a witness. The Commissioner Mr. Pitley stated that he could not attend as he was in the Raigarh State and so the Court directed him to be examined on commission. The defendant complains that he was not told of the date of this examination and so had no opportunity of cross-examination. Here again the conduct of the defendant shows that be did not want to attend. On 22nd December 1933, the defendant stated that he did not want to examine his witness till Mr. Pitley had been examined. On 18th April 1934, orders were issued for the examination of Mr. Pitley on commission and the Court said:
Defendant to summon his witnesses as plaintiff would close after the commission report is received, Case for evidence for 21st September 1934.
9. On that date the plaintiff stated that he had no witnesses but the defendant was not called upon to proceed, the Court ordering that "the defendant shall examine his witnesses after the report is received." On 17th November 1934, the report of the commission which had been received the previous day was filed with the record in the presence of the parties. The defendant was then told to summon his witnesses for 20th February 1935. He raised no objection either then or at any other stage, and proceeded in due course to examine his witnesses. Had he raised an objection immediately the defect could easily have been cured and another commission issued.
10. The next objection is a purely technical one. It is urged that under O. 26, R. 8 evidence taken on commission cannot be read as evidence in the suit without the consent of the party against whom it is offered and it is stated that the defendant) has not consented. But this ignores the provision in sub-cl. (a). When the person who gave the evidence is beyond the jurisdiction of the Court the rule does not apply. Mr. Pitley was in the Raigarh State and so beyond the jurisdiction of the first Court and consequently this evidence was rightly read.
11. As regards the merits, the questions involved are one of fact. It was argued that there is nothing to prove that the defendant] caused the damage and his learned counsel urged that the plaintiff himself or one of his lessees might have out the trees after the defendant's term expired. My attention was drawn to the fact that Mr. Pitley's report shows a larger number of trees than the plaintiff's list which was filed much earlier, and it is argued that the only possible explanation to account for the difference is that the plaintiff himself was felling trees after the defendant had left. But this is a pure question of fact. There is evidence to show that some of the plaintiff's witnesses had examined the ground even during the continuance of the lease and had found signs of illegal cutting, and the defendant himself admitted as D.W. 3 that he had cut trees within 20 yards of the Marghat nala; his excuse being that the tahsildar had told him that as the nala had no water in it he was at liberty to cut the trees. In the circumstances, the Court had ample evidence on which to base its findings especially as the suit was very promptly filed within a month of the termination of the lease.
12. As regards this last point, the learned counsel for the defendant urges that Cl. 4 of the agreement only prevented trees with. in 20 yards on either side of the nalas having water in them in January from being cut, but as this particular nala was dry even in December there was no infringement of the rules. This however is not what the agreement says. It speaks of a stream "which retains water up to the month of January" and in any case R. 5(e), to which a reference has already been made prohibits cutting within these areas of stream which "ordinarily retain water till January." In view of Cl. (1), the sentence quoted from Cl. (c) must be read in con. junction with this rule. There is therefore no force in this contention either.
13. The only point of any substance in the appeal is that the commission has given figures which exceed the plaintiff's list of particulars and the lower Appellate Court relying on the commission report has travelled beyond the plaintiff's own claim. This of course he was not entitled to do, especially as there has not been an application for amendment at any stage; not even before me. The decree will therefore have to be reduced. The differences are these; In the list the plaintiff complained under Col. 2 that 176 trees had been cut. The commission found that 193 trees had been out and he valued them at Rs. 198-15-0. It is evident from the report that slightly different valuations have been placed upon trees of different size and it is not possible for me to determine from the materials at my disposal the size of the 17 trees which have to be excluded, but as the difference can only be of a rupee or two it is clearly not worth while sending the case back for ascertaining their exact value. A rough estimate of Rs. 17 baaed on an average is near enough for all practical purposes. Therefore I reduce the decree by Rs. 17 under this head.
14. The other point of difference is in Col. 3. The difference here is large. The plaintiff complained of only 89 trees in his list whereas the commission has found that there are 202 trees. In this case he has assessed each tree at a uniform value, namely Rs. 1.12.3. Therefore, all that the plaintiff is entitled to under this head is Rs. 157 to the nearest rupee. That is to say the claim under this head will have to be reduced by Rs. 144. Adding the other Rs. 17 to this the total, reduction in the amount decreed comes to Rs. 161. The decree will be modified accordingly. There is a complaint about costs also. The lower Court did not decree the whole claim and so following the usual rule only proportionate costs should have been allowed. I therefore set aside the decree of the lower Appellate Court so far as the costs are concerned and direct that costs shall be proportionate to success and failure throughout. The rest of the appeal is dismissed.
No comments:
Post a Comment