STATE OF U P Vs. SUKHA NAND JAIN

JUDGEMENT

(1.) THIS second Appeal has been preferred against the judgment and decree dated 15 -4 -1998 by the then learned District Judge Almora in Civil Appeal No. 13 of 1996, Executive Engineer Temporary Division P.W.D. Bageshwar and another Vs. Sukha Nand Jain, arising out of Original Suit No. 2 of 1987, S.N. Jain Vs. Executive Engineer and another, whereby the appeal preferred by the defendant -appellant was dismissed by the learned District Judge. It may be mentioned that the Original Suit No. 2 of 1987 filed by the plaintiff -respondent Sukhanand Jain for permanent injunction against the defendant -appellants was decreed by judgment and decree dated 10 -3 -1989 passed by the Civil Judge Almora.

(2.) RELEVANT facts giving rise to the present second appeal are that the plaintiff -respondent filed Original Suit No. 2 of 1987, against the defendants, in the Court of Civil Judge (now senior Division) Almora, for permanent injunction restraining the defendants from recovering the cost of certain items of tools and plants with the allegation that plaintiff had been a contractor for construction of steel bridges in Kumaun Zone and a number of bridges were erected under various contracts executed with the defendants. During execution of a contractual work, plaintiff had taken as per terms and conditions of the contract bond, items of Tools and Plants from defendant No. 2 for use in the erection of bridges, which were returnable. It was further alleged by the plaintiff -respondent that at the relevant period, Sri R.K. Jain. Executive Engineer was having charge of two divisions of the Public Works Department including the construction division Bageshwar. In the month of December, 1983, the defendant no.1 required items of tools and plants and therefore, the plaintiff was directed to provide them to the staff of the defendant No. 1. Since the orders of the Sri R.K.Jain. was binding on the plaintiff, he accordingly handed over some tools and Plants to the employees as desired. According to the plaintiff the articles supplied by the defendant No. 2 as tools and Plants were reduced in writing. The articles handed over to defendant no. 1 were not returned to defendant No. 2 and this caused shortage in tools and Plants supplied by the plaintiff. It was further said that the Junior Engineer of the defendant No. 1 Sri Rastogi appears to have delivered some tools and Plants to the another contractor Dham Singh, who was executing a construction work under the Provincial Division P.W.D. Ranikhet. The plaintiff contended that he was not liable for the Tools and Plants which had fallen short to the extent supplied by defendant No. 2. According to the plaintiff, the entire Tools and Plants were returned to defendant no. 1 as per direction of the defendant no. 2. The plaintiff came with the suit for permanent injunction apprehending unwarranted recovery with respect to Tools and Plants.

(3.) THE defendants contested the suit by filing written statement asserting therein that the plaintiff did not complete the contract work undertaken by him from the defendants. It was pleaded that the plaintiff had taken some Tools and Plants from the defendant No.2. The plaintiff left out the contract work, therefore, the work was got executed departmentally for erection of Harshila bridge and for this purpose, some Tools and Plants were taken from the plaintiff as well as another contractor Dham Singh. The Tools and Plants taken from the plaintiff were returned to him, but the plaintiff in turn did not return them to the defendant no. 2. It was also stated that if the employees of defendant no. 1 did not return the Tools and Plants, the plaintiff himself was liable for the same. The defendant no.2 is taking steps for recovery of the costs of Tools and Plants.