SUKHBIR KAUR PRITAMSINGH SANDHU Vs. NAGPUR IMPROVEMENT TRUST

JUDGEMENT

(1.) IN this first appeal, the appellant, who is the original plaintiff, seeks to challenge the judgment and order dated 8-8-1996 of the learned 5th Joint Civil Judge, Sr. Dn. , Nagpur, in Special Civil Suit No. 133 of 1989.

(2.) THE suit which has been instituted by the appellant against the Nagpur Improvement Trust, which is the original defendant, is for the recovery of an amount of Rs. 06,19,312. 50 towards the market value of the goods and by way of damages on account of illegal and high handed seizure of machinery and shed fitted with 300 G. C. sheets and allowing to rot in the open and also subject to theft of parts of machinery. (Para Clause 3-A ). The appellant had instituted an earlier suit being Special Civil Suit No. 165 of 1980 in the Court of the learned Joint Civil Judge, Sr. Dn. , Nagpur, for the return of goods worth Rs. 1,30,159. 50 or for the recovery of the aforesaid amount as reflecting the price of the goods and for damages. It appears that a plot of land, bearing plot No. 2, situated at Ghat Road was allotted to one Pritamsingh on 3-2-1960 on the basis of a temporary licence. The licence came to be cancelled on 16-5-1973 for non payment of the prescribed licence fee and the allottee was called upon to remove himself from the plot. That notice came to be issued by the Nagpur Improvement Trust on 24-10-1973 and ultimately, it would appear, the structure was removed on 18-7-1975. In the earlier suit which was instituted by the appellant, as already noted, there was a claim for the return of the goods which had been seized or for the price of the goods seized and for damages. The earlier suit was tried and the learned Joint Civil Judge, Sr. Dn. , rendered judgment on 20-9-1982. The appellant had, in the course of the evidence in the earlier suit, produced a list of machinery and goods which, according to her, had been seized during the course of demolition by the respondent herein and it was the case of the appellant that the market value of the goods seized was Rs. 1,35,212/ -. This was disputed by the respondent. The respondent furnished a list of the items which had been seized and which had been stored by it. The case of the respondent was that several notices were issued to the appellant to take back the custody of the articles which had been seized but the appellant was not willing to do so. Insofar as this proceeding is concerned, it would be material to note that Issue Nos. 3 (a) and 3 (b) of the issues which were framed in the earlier suit were thus : (a) Does the plaintiff prove that the machinery and goods as per list were on the plot and the defendant No. 1 took possession of the same? 3 (b) Whether the market value of the said goods was Rs. 1,35,212? both the aforesaid issues were answered in the negative. The learned trial Judge, in the course of the judgment in the earlier suit, declined to accept the list of material seized, as submitted by the appellant. On the other hand, the list of goods prepared by the office of the respondent herein, which was marked as Ex. 56 in those proceedings, was regarded by the learned trial Judge as the correct list of the articles seized. The learned trial Judge noted that from the oral evidence it was evident that the respondent was ready and willing to return the goods but the appellant herein was reluctant to take delivery. The case of the appellant was that the goods had been found in damaged condition and, therefore, no delivery was taken. This plea was not accepted. The learned trial Judge accepted the contention of the respondent that the evidence led on behalf of the respondent showed that the goods were old and held that this evidence was satisfactory and believable. The learned trial Judge, therefore, accept the case of the respondent that the goods which were taken away by the respondent could not have been of a value more than Rs. 15,000/ -. In paragraph 17 of the judgment, it is stated that it was the plaintiff who was trying to take advantage of the situation and was seeking to earn huge profit out of the old machinery. The learned trial Judge held that the appellant had failed to prove that the machinery and goods, in accordance with the schedule prepared by the appellant, had been taken away by the respondent and that the market value of the said goods was Rs. 1,35,212/ -. The suit, it was common ground, was initially dismissed. But thereafter on an application moved under section 52, the decree was eventually amended so as to provide that the respondent shall deliver the goods which were seized from the husband of the appellant within a period of two months.

(3.) THE learned Counsel appearing for the appellant has stated that the judgment of the learned trial Judge in the earlier suit was confirmed in appeal by this Court and by the Supreme Court. Thereafter, the appellant set in motion proceedings for the execution of the decree insofar as it provided for the return of the goods which had been seized. In the course of the execution proceedings the Executing Court appointed a Court Commissioner and eventually passed an order on 23-8-1988. The Executing Court noted that the respondent had filed an undertaking and shown its readiness to return the articles which had been seized, as reflected in the seizure list produced before the Court, but the appellant had refused to accept those goods. Thereupon, the respondent had filed a pursis intimating the Court that the appellant was refusing to accept the goods. The appellant, the Executing Court noted, was refusing to accept the goods on the ground that those were not the same as the goods which were seized from him or owned by him. The Executing Court appointed a Commissioner. The Court was of the view that once the appellant had refused to accept the goods, the execution proceeding was complete unless the appellant proves the value or identity of the property by filing a separate suit. Having said this, the Executing Court in its order dated 23-8-1988, while dismissing the execution, granted liberty to the appellant to file a separate suit claiming specific items seized from him or the market value of those items.