The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.369 of 1999 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) State of Orissa, represented by the …. Appellants Collector, Puri & Another -versus- Bijaya Kumar Mishra …. Respondent For Appellants - Mr. S.Pattnaik,A.G.A. For Respondent - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :31.07.2024:: Date of Judgment :21.08.2024 A.C. Behera, J. This Second Appeal has been preferred against the reversing judgment. 2. The appellants of this Second Appeal were the defendants before the Trial Court in the suit vide M.S. No.18 of 1990-III and respondents before
Legal Reasoning
the 1st Appellate Court in the first appeal vide M.A. No.2 of 1996. The respondent of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide M.S. No.18 of 1990-III and appellant before the 1st Appellate Court in the 1st appeal vide M.A. No.2 of 1996. SA No.369 of 1999 Page 1 of 13 // 2 // 3. The suit of the plaintiff (respondent in this 2nd Appeal) vide M.S. No.18 of 1990-III before the Trial Court against the defendants (appellants in this 2nd appeal) was a suit for realization of money. 4. The case of the plaintiff in the suit vide M.S. No.18 of 1990-III against the defendants before the Trial Court was that, he (plaintiff) was entrusted with the construction of Right Main canal Reach-II of Bhetabar Minor Irrigation Project from R.D.6000 to 10,000 R.D. for fine dressing and turfing 1,00,000 square meters for Rs.25,000/- at the rate of Rs.25/- per 100 square meters as a contractor by the defendants through an agreement and work order dated 01.11.1979 for completion of the said works on or before 01.03.1980. As per such agreement and work order, he (plaintiff) started such works and completed the same within time i.e. before 01.03.1980. The said works were checked and measured by the Junior Engineer and Asst. Engineer on behalf of the defendants and after measurement, the bills were submitted by the Asst. Engineer on 4.3.1980 to R.E.O. Division, Puri and on proper verification of the same, the Executive Engineer R.E.O. Division, Puri gave the certificate that, the executed works of the plaintiff on the basis of the work order have already been satisfactorily tested by his authorities and recommended for payment of the bill amount in favour of the plaintiff. But, before payment of the bill amount, the R.E.O. Department throughout Orissa was abolished since Page 2 of 13 SA No.369 of 1999 // 3 // 30.6.1980 and the function of R.E.O. Department was taken over by the Minor Irrigation Department. For which, the functions of R.E.O. Division, Puri were assigned to the Executive Engineer, Minor Irrigation Division, Khurda (defendant No.2). But, in spite of several approaches through letters, the amount of the bills of the plaintiff were not paid on the ground of lack of allotment of funds for the same. So, without getting any way, in order to institute the suit for realization of money, he (plaintiff) issued notices under Section 80 of the C.P.C. to the defendants on 30.10.1989 through registered post with A.D. and after receiving the said notice under Section 80 of the C.P.C., the defendant No.1 did not give any reply, but the defendant No.2 (Executive Engineer) gave reply stating that, no works have been done by the plaintiff, for which, he (plaintiff) is not entitled for any money as claimed by him through the notice. So, the plaintiff filed the suit vide M.S. No.18 of 1990-III against the defendants praying for realization of sum of Rs.37,300/- i.e. Rs.25,000/- towards the bill amount of his executed works and Rs.12,300/- towards its interest from the date of its due as per Bank rate in commercial transactions along with pendente- lite and future interest at the rate of 18% per annum and other reliefs, to which, he (plaintiff) is entitled for. 5. Having been noticed from the Trial Court in the suit vide M.S. No.18 of 1990-III, the defendants contested the same by filing their joint Page 3 of 13 SA No.369 of 1999 // 4 // written statement taking their stands therein that, the plaintiff has no cause of action for filing the suit against them (defendants). The suit of the plaintiff is barred by law of limitation. The further pleas of the defendants were that, the plaintiff was not entrusted with the construction of Right Main canal Reach-II of Bhetabara Minor Irrigation Project from R.D.6000 to 10,000 for fine dressing and turfing as stated in Para No.1 of his plaint. The averments made by the plaintiff in Para No.2 of his plaint are false, fabricated and imaginary. No agreement was executed by them (defendants) with the plaintiff for any work. No work was done by the plaintiff. For which, the question of measurement of any work of the plaintiff through measurement book No.1245 and preparation of bills for the same does not arise. The so-called measurement Book No.1245 is not with them (defendants). The said measurement book (M.B.) and L.B. No. R.E.P 99 were filed before the Arbitration Tribunal, Odisha in connection with Arbitration Case No.3 of 1983 and a request was made to the Tribunal for the return of the same in order to file the same before this Court. But, the Tribunal did not return the same, as the Sub-Judge, Bhubaneswar called for the said document to the suit. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants). SA No.369 of 1999 Page 4 of 13 // 5 // 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether six numbers of issues were framed by the Trial Court in the suit vide M.S. No.18 of 1990-III and the said issues are:- Issues 1. Whether the suit as laid is maintainable? 2. Whether the plaintiff had executed the contract work for construction of Right Canal Reach-II of Bhetabara Minor Irrigation Project from R.D. 6000 to 10000 R.D. for Fine Dressing and Turfing and the aforesaid contract work was entrusted to him for a sum Rs.25,000/- by the Executive Engineer, R.E.O. Division, Puri? 3. Whether the suit is barred by the law of limitation? 4. Whether the plaintiff realize compensation at the rate 18% per annum from 12.6.1987 till the filing of the suit, as payment was not made to him from 12.6.1987 to 5.3.1990? is entitled to 5. Whether the plaintiff is entitled to realize the pendent-lite and future interest at the rate of 18% per annum over the suit amount? 6. To what relief, if any, the plaintiff is entitled? 7. In order to substantiate the aforesaid relief(s), sought for by the plaintiff against the defendants, he (plaintiff) examined him as P.W.1 and relied upon series of documents on his behalf vide Exts.1 to 35. On the contrary, in order to nullify/defeat the suit of the plaintiff, the defendants examined one witness i.e. one of its Engineer as D.W.1 without proving any document from their side. SA No.369 of 1999 Page 5 of 13 // 6 // 8. After conclusion of hearing and on perusal of the materials, evidence and documents available in the record, the Trial Court answered only issue No.2 in favour of the plaintiff, but answered other issues i.e. issue Nos.1, 3, 4, 5 and 6 against the plaintiff and in favour of the defendants assigning the reasons that, the plaintiff was entrusted with the works as a contractor as stated by him in his plaint by the Asst. Engineer and Junior Engineer of the R.E.O. Department and he (plaintiff) had executed such works as per the agreement and the said executed works were properly checked and measured on 03.03.1980 and the same was approved by the Executive Engineer on 04.03.1980 as per the bill and the plaintiff was entitled for Rs.25,000/- towards the execution of said contract works on 04.03.1980, then, the right to sue in favour of the plaintiff had accrued on 04.03.1980 as per Article 113 of the Limitation Act, 1963, for which, the plaintiff should have filed the suit within three years since 04.03.1980 for realization of the said amount, but, when, he (plaintiff) filed the suit vide M.S. No.18 of 1990-III on dated 6.3.1990, after three years since 04.03.1980, then, the suit of the plaintiff is not maintainable under law being barred by law of limitation. So, only on the ground of limitation, the Trial Court dismissed the suit vide M.S. No.18 of 1990-III of the plaintiff on contest against the defendants as per its judgment and decree 29.2.1996 and 14.3.1996 respectively. SA No.369 of 1999 Page 6 of 13 // 7 // 9. On being dissatisfied with the aforesaid judgment and decree of the dismissal of the suit of the plaintiff vide M.S. No.18 of 1990-III passed by the Trial Court on dated 29.2.1996 and 14.3.1996 respectively, he (plaintiff) challenged the same by preferring the 1st Appeal vide M.A. No.2 of 1996 being the appellant against the defendants arraying the defendants as respondents. 10. After hearing from both the sides, the 1st Appellate Court allowed that first appeal vide M.A. No.2 of 1996 of the plaintiff on contest and set aside the judgment and decree passed by the Trial Court in M.S. No.18 of 1990-III and decreed the suit vide M.S. No.18 of 1990-III of the plaintiff on contest against the defendants entitling the plaintiff for realization of Rs.25,000/- with pendente-lite and future interest thereon at the rate of 12% per annum since the date of filing of the suit till the final realization of the same as per its judgment and decree dated 30.6.1999 and 9.7.1999 respectively assigning the reasons that, the cause of action for filing of the suit by the plaintiff against the defendants had arisen for the first time on dated 18.1.1990, when, the defendant No.2 gave reply to his Advocate Notice stating that, he (plaintiff) has not executed any work and there was no agreement for the so-called work in favour of the plaintiff i.e. when, the right to get money of the plaintiff was infringed/denied by the defendant No.2 on dated 18.1.1990, then, his right of filing the suit had created and as Page 7 of 13 SA No.369 of 1999 // 8 // the suit has been filed by the plaintiff on 6.3.1990, for which, the suit of the plaintiff is not barred by limitation, because, it was the specific finding of the Trial Court that, on the basis of the work order/agreement, the plaintiff had executed the works and his executed works were checked and measured and he (plaintiff) was entitled for Rs.25,000/-. 11. On being aggrieved with the aforesaid judgment and decree passed by the 1st Appellate Court in M.A. No.2 of 1996 against the defendants, they (defendants) challenged the same by preferring this 2nd Appeal being the appellants against the plaintiff arraying him (plaintiff) as respondent. 12. This 2nd Appeal was admitted on formulation of the following substantial questions of law i.e.:- (i) Whether the 1st appellate Court is justified in holding that, the suit is filed within the period of limitation by interpreting the words accrual of right and right to sue? (ii) Whether the 1st Appellate Court is justified in saying that, since the defendants had not refused the claim of the plaintiff, on the basis of the bills submitted, the right to sue had not accrued? (iii) Whether the 1st Appellate Court has misconstrued for stretching the period limitation in favour of the plaintiff? (iv) Whether the 1st Appellate Court is justified in decreeing the suit in favour of the plaintiff in setting aside the findings on limitation made by the Trial Court? SA No.369 of 1999 Page 8 of 13 // 9 // 13. I have already heard only from the learned Additional Government counsel for the appellants, as, none appeared from the side of the respondent. 14. It was the specific findings/observations of the Trial Court in its judgment and decree passed in M.S. No.18 of 1990-III in issue Nos.2 and 3 after appreciating the oral and documentary evidence of the parties that, the plaintiff was entrusted through agreement dated 01.11.1979 on behalf of the defendant No.1 (State) for execution of works indicated in that agreement and he (plaintiff) executed such works properly within its time period and his said executed works were checked and measured and as per the bills thereof, he (plaintiff) was entitled to get Rs.25,000/- since 12.06.1987, as the bills thereof was prepared on 12.06.1987. Such findings of the Trial Court regarding the entitlement of the plaintiff for Rs.25,000/- as per bills from the defendants since 12.06.1987 have not been challenged by the defendants either by way of cross objection in the 1st Appeal filed by the plaintiff vide M.A. No.2 of 1996 or by questioning the same during argument before the 1st Appellate Court, for which, that unchallenged/unquestioned findings of the Trial Court against the defendants had already been reached in its finality. Therefore, that unchallenged/unquestioned parts of the findings of the Trial Court SA No.369 of 1999 Page 9 of 13 // 10 // regarding the entitlement of Rs.25,000/- by the plaintiff from the defendants since 12.06.1987 as per the final bills for the execution of works are binding upon the parties including the defendants. So, the defendants are precluded under law from disputing the correctness of such findings. It is the settled propositions of law that, so long as, there is no positive overt acts or actions on the part of the defendants to infringe the right of plaintiff, there would be no accrual of right to sue i.e. cause of action in favour of the plaintiff. 15. Here, in this suit/appeal at hand, till 18.1.1990, the defendants had not denied the money claim of the plaintiff, but, for the first time, on dated 18.1.1990, the defendant No.2 replied to the notice under Section 80 of the C.P.C. of the plaintiff denying to provide the money claimed by the plaintiff stating that, he (plaintiff) has not executed any work and no agreement was executed with him (plaintiff) for the so-called work. For which, as per law, the cause of action for filing of the suit by the plaintiff against the defendants had accrued for the first time on dated 18.1.1990, when, the defendant No.2 infringed/denied the money claim of the plaintiff. SA No.369 of 1999 Page 10 of 13 // 11 // As, the suit has been filed by the plaintiff within 3 months since the date of accrual of the above cause of action i.e. within three months since 18.01.1990, i.e., on 06.03.1990, then, as per law, it cannot be held that, the suit of the plaintiff against the defendants was barred by law of limitation. When, on the basis of the aforesaid unchallenged findings of the Trial Court, the plaintiff was entitled to get Rs.25,000/- as per the final bill dated 12.06.1987 from the defendants on the basis of the checks and measurements of his executed works and when, the defendants are none else, but they are the State and its officer and when, the plaintiff is one of the citizen of the State and when his claim against the defendant-State is not for any other reason, but only in order to get his unpaid dues of the entrusted works executed by him (plaintiff) for the welfare and benefit of the state (defendant No.1), then, as per law, the defendants being the State and its officer should not rely on technical plea i.e. on the plea of limitation to avoid the just claims/dues of its citizen i.e. plaintiff. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio of the following decisions:-
Legal Reasoning
(i) 2022 (2) CCC 204 (Jharkhand): Smt. Sharda Devi Vrs. Central Coalfields Limited, Ranchi and Others—On technical grounds, State should not deny to its citizens just dues. (ii) 2024(2) CCC (S.C.) 177: Bano Saiyed Parwaz Vrs. Chief Controlling Revenue Authority and Inspector General of Registration and Controller of Stamps and Others—When, State deals with a citizen, it should not ordinarily rely on technicalities even though such defences may be open to it—Period of expiry of limitation prescribed under any law may bar remedy but not right. SA No.369 of 1999 Page 11 of 13 // 12 // (iii) AIR 1954 (Bombay) 50:Firm Kaluram Sitaram Vrs. The Dominion of India—When, the state deals with a citizen it should not ordinarily rely on technicalities and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as an honest person. (Para 12) (iv) AIR 1979 (S.C.) 1144: The Madras Port Trust Vrs. Hymanshu International by its Proprietor V.Venkatadri (dead) by LRs.—It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. (v) 2022 (II) CLR (S.C.) 101: Sukh Dutt Ratra and Another Vrs. State of Himachal Pradesh & Others—State cannot shield itself behind ground of delay and latches. In such a situation, there cannot be a limitation for doing justice. (vi) 2017 (I) CLR 313: State of Orissa & Another Vrs. Sri Dwarika Das Agarwalla—When state deals with a citizen, it should not ordinarily rely on technicalities—If state is satisfied that the case of the citizens is a just one, even though legal defences may be open to it, it must act as an honest person. Because state is a virtuous litigant. (Para 18) (vii) 2024 (I) ILR (Cuttack) 1498:State of Orissa & Others Vrs. M/s. Jagannath Traders—The State and its officers, i.e., the defendants being virtuous litigants as per law, they should not ordinarily deal with their citizens like the plaintiff to debar him (plaintiff) from getting his legitimate dues by relying on the technicalities, i.e., on the ground of limitation and others. (Para 35) 16. Here, in this suit/appeal at hand, when the State and its officer i.e. the defendants are virtuous litigants as per law, then, they should not deal with their citizens like the plaintiff to debar him (plaintiff) from getting his just/legitimate dues relying upon the technical plea of limitation and when, as per the discussions and observations made above, the suit of the plaintiff against the defendants is not barred by limitation, then at this juncture, the judgment and decree passed by the 1st Appellate Court in M.A. No.2 of 1996 in setting aside the judgment and decree of the dismissal of the suit vide M.S. No.18 of 1990-III passed by the Trial Court and in decreeing the suit of the plaintiff vide M.S. No.18 of 1990-III of the plaintiff entitling the Page 12 of 13 SA No.369 of 1999 // 13 // plaintiff to realize his legitimate dues from the defendants with interest thereon as per its judgment and decree cannot be held as unreasonable. For which, the question of interfering with the same through this 2nd appeal filed by the appellants (defendants) does not arise. Therefore, there is no merit in the 2nd appeal of the appellants (defendants). The same must fail. 17. In result, the 2nd appeal filed by the appellants (defendants) is dismissed on contest against the respondent (plaintiff), but without cost. The judgment and decree passed by the 1st appellate Court in M.A. No.2 of 1996 is confirmed. Orissa High Court, Cuttack 21st of August, 2024/ Binayak Sahoo// Junior Stenographer (A.C. Behera), Judge Signature Not Verified Digitally Signed Signed by: BINAYAK SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Aug-2024 19:38:54 SA No.369 of 1999 Page 13 of 13