KALAWATI Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS appeal by Kalawati and others legal representatives of late Yash Pal Garg, and M/s. Yash Pal Garg and Company, is directed against the judgment and decree, dated 5th October, 2000, of learned Single Judge, whereby suit for recovery of certain amount of money, filed by late Yash Pal Garg and the aforesaid company, has been dismissed, on the grounds that the agreement, on the basis of which suit had been filed, was executed between Yash Pal Garg (in his individual capacity) and the State of Himachal Pradesh, through Conservator of Forests, but the suit had been filed in the name of M/s. Yash Pal Garg & Company and also on the ground that the same was bad and not maintainable, because notice, under Section 80 of the Code of Civil Procedure, that had been served before the institution of the suit was given to the defendants on behalf of M/s. Yash Pal Garg & Company and not by Yash Pal Garg, even though the agreement was signed by him in his individual capacity.

(2.) RELEVANT facts may be summed up thus. In the year 1980, a document was executed between late Yash Pal Garg and the State of Himachal Pradesh, whereby Yash Pal Garg (deceased plaintiff) was allowed to fell certain trees and to convert them into timber from a Government forest in Chopal forest division. The trees formed part of Lot No. 1/80 -84. The period during which the trees were to be felled and converted into timber was 1980 to 1984. Yash Pal Garg completed the felling and conversion of trees within the aforesaid period. However, a criminal case was registered against M/s. Yash Pal Garg & Company, through its partner Yash Pal Garg, on the allegation that he had done some illicit felling while felling the marked trees in the aforesaid Lot No. 1/80 -84. Timber extracted by Yash Pal Garg, pursuant to the aforesaid agreement, was seized. Lateron, it was auctioned under the orders of Special Judge (Forest), Shimla. Plaintiff claimed that he sustained losses in the form of payment of interest to banks and retention of security money, etc. Notice was served upon the defendants, under Section 80 of the Code of Civil Procedure, in the name of M/s. Yash Pal Garg & Company, through Advocate. Thereafter, suit was filed, both in the name of Yash Pal Garg and M/s. Yash Pal Garg & Company.

(3.) THE learned Single Judge framed the following issues on the pleadings of the parties: 1. Whether the suit is properly valued for the purposes of Court -fee and jurisdiction? OPP 2. Whether the plaintiff is estopped from filing the present suit by his acts and conduct? If so its effect? OPD 3. Whether the demands, or any part thereof, raised by the Forest Department against the plaintiff amounting to Rs. 4,58,858.72P, Rs. 3,50,000/ - and Rs. 68,718.00P are valid and legally tenable? OPD 4. Whether the plaintiff is entitled to recover Rs. 10,62,396.28P from the defendants as interest paid by him to Central Bank of India, Yamunanagar as alleged? OPD (Note: The plea raised by the plaintiff that the timber was illegally and mala fide seized by the defendants would be covered by the above issue). 5. Relief. Thereafter, parties led evidence. During the course of final hearing, State of Himachal Pradesh raised the following contentions: (i) The lot was auctioned in favour of Shri Yash Pal Garg in his individual capacity. The agreement Ex. PW -7/3 has been entered into by the said Shri Yash Pal Garg in his individual capacity, the present suit by the partnership firm (Plaintiff No. 2) and by Shri Yash Paul Garg (plaintiff No. 1) in his capacity as a partner of plaintiff No. 2 firm, is not maintainable and competent; (ii) Alternatively, if the present suit, insofar as plaintiff No. 1 is concerned, is held to have been filed in his individual capacity, the same is bad and not maintainable in the absence of notice under Section 80, Code of Civil Procedure. Learned Single Judge accepted both the contentions, as already noticed, and dismissed the suit.