STATE OF J&K Vs. BIHARI LAL SURI

JUDGEMENT

(1.) THIS revision arises out of an application for review of the preliminary decree passed by the Sub Judge (ADM) Jammu on 2 -12 -1966

(2.) IT appears that a suit for rendition of accounts was brought by Bihari Lal Suri, the plaintiff respondent, against the State of Jammu and Kashmir through the Chief Engineer Irrigation Department in the court below. The plaintiffs averments in the plaint were that he had taken contract of realising royalty for extracting, lifting and removal of sand, stones and Bajri from the different departments, mentioned in the plaint. The plaintiff had to charge royalty from the department concerned or any other agency who would collect these materials from the areas of which he was the royalty contractor. However, the plaintiff was asked by the defendant not to charge the royalty from the contractors and that an assurance was given to him that the rayalty charges to the plaintiff would be paid by the Irrigation Department. On this assurance the plaintiff did not recover royalty from the contractors engaged by the Irrigation Department for the execution of works. The plaintiff approached the Irrigation Department to settle his accounts and to pay the royalty charges but the defendant refused to do so. In his defence the Chief Engineer Irrigation department admitted the plaintiff to have been the royalty contractor but he contended that it was not known to the defendant as to far what time and how long the plaintifs was the royalty contractor. The Irrigation Department was prepared to pay the amount of royalty to the plaintiff should the plaintiff prove that he was a royalty contractor from 1955 to 1958. It was also admitted that Irrigation Department had undertaken the liability to pay the royalty charges to the plaintiff because he had been prevented by the Department from realising royalty from the contractors.

(3.) AFTER raising the necessary issues in the case and after considering the evidence on record the court below held that the plaintiff was the royalty contractor for sand, stone and Bajri for the year 1955 to 1958 for Cantonment Board Jammu, Rakhas and Farms and Fisheries Department. The court also found that liability to pay the royalty had also been admitted by the defendant and as such, in these circumstances, the plaintiff was entitled to a decree for rendition of accounts. As a result of this preliminary decree for rendition of accounts was passed and one Mulk Raj Sawhany overseer Irrigation Division Jammu was appointed as Commissioner for making his report. The preliminary decree was passed on 2 -12 -66 The Commissioner appointed was seized of the case. He was however followed by another Commissioner when on 24 -1 -68 i. e. after over one year the defendant made an application for review of the preliminary decree. It was submitted in the review petition that the defendant had not admitted the claim of the plaintiff to be a royalty contractor in the suit, but certain admissions were made by the defendant in the case on the basis of which the court held the plaintiff entitled to recover the royalty amount. Such admissions or acknowledgments were made by the officers of the Irriagation Department at the point of the time when actual facts of the case were not fully known to him. Now it has been found that the plaintiff was not the royalty contractor from 1955 to 1958. As a result of non -production of the evidence by the defendant a decree had been passed by the court on the mis -repre sentation of the plaintiff. It was therefore, prayed that the judgment and preliminary decree passed by the court be reviewed and set aside. This application was contested by the plaintiff respondent. The learned court below after hearing arguments in the application dismissed the same. Against that order the defendant has come up in revision before this court.