DIWAKAR DUTT BHARDWAJ Vs. H.P.M.C.

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgment of the learned District Judge, Kinnaur at Rampur Bushahr, H.P. passed in Civil Appeal No. 7 of 2000 dated 2.6.2000 whereby he has allowed the appeal filed by the respondent (HPMC) and set -aside the judgment and decree of the learned Senior Sub Judge, Kinnaur in Civil Suit No. 52 -1 of 91 decided on 20.11.1999. This appeal was admitted on the following substantial question of law:

(2.) THE appellant (hereinafter referred to as the plaintiff) instituted a suit for recovery of Rs. 90,000/ - against the defendant. The case set out was that the plaintiff is an horticulturist. He also takes other orchards on contract. In the apple season of the year 1990 the plaintiff had purchased standing apple crop/fruit in various areas of Tehsil Theog. After purchase of the fruit he brought 359 crates of apple to the cold store being run by the defendant at Oddi on 25.9.1990. According to the plaintiff, there was an implied agreement whereby the defendant was to keep the fruit in a proper condition on behalf of the plaintiff. The plaintiff was to pay a sum of Rs. 3.50 per month per crate to the defendant. In addition thereto the plaintiff was to pay labour charges @ .50 paise per crate. On 24.10.1990 the plaintiff visited the cold storage and to his utter surprise and dismay found that the ceiling of the Chamber No. 4 of the cold storage where his fruit was stored had been damaged. The refrigeration system was not working properly. According to the plaintiff he learnt that the ceiling of the Chamber No. 4 broke on 12.10.1990. The plaintiff issued notice on 24.10.1990 itself to the defendant. On 25.10.1990 he applied to the Tehsildar to visit the spot who accordingly visited the spot. According to the plaintiff the fruit of 359 apple crates is equal to 450 apple boxes and the market value thereof at the relevant time was Rs. 90,000/ -. Hence, the suit.

(3.) THE following issues were framed in the suit: