The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.170 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) …. Appellants Secretary to Government of Orissa, Agriculture and Cooperation Department, Bhubaneswar, Secretariate Building, Dist. Puri & Another -versus- Haribandhu Parida …. Respondent Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellants - Mr. Suvashis Pattnaik, AGA. For Respondents - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :24.01.2024:: Date of Judgment :29.02.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the reversing Judgment. 2. The appellants of this 2nd Appeal were the defendants before the Trial Court in the suit vide T.S. No.181 of 1987 and they were the respondents before the 1st Appellate Court in the 1st Appeal vide T.A. No.9 of 1990. SA No.170 of 1991 Page 1 of 17 {{ 2 }} The respondent of this 2nd Appeal was the sole plaintiff before the Trial Court in the suit vide T.S. No.181 of 1987 and he was the appellant before the 1st Appellate Court in T.A. No.9 of 1990. The suit of the plaintiff (respondent of this 2nd Appeal) before the
Legal Reasoning
Trial Court vide T.S. No.181 of 1987 was a suit for mandatory injunction and as well as perpetual injunction. 3. The case of the plaintiff before the Trial Court in the suit vide T.S. No.181 of 1987, as per his pleadings was that, as per the publication made by the defendant No.2 (Director of Soil Conservation, Orissa) tenders were invited in Local Daily Samaj newspaper on 5.1.1987 for selling of 87,000 Salia and Kanta bamboos from Bamboo Orchard of Tubey of Angul in the District of Dhenkanal. In response to such tender call of the defendant No.2 through local daily Samaj, the plaintiff along with others submitted tender papers, quoting the prices for purchasing 87,000 Salia and Kanta bamboo trees from the Bamboo Orchard of Tubey Angul, Dhenkanal. After making proper scrutiny, the tender of the plaintiff was accepted by the defendant No.2 as per its Letter No.11817 dated 03.07.1987 and accordingly, the defendant No.2 issued an another letter to the plaintiff on 23.7.1987 intimating him (plaintiff) about the SA No.170 of 1991 Page 2 of 17 {{ 3 }} acceptance of his tender for purchasing 87,000 numbers of Salia and Kanta Bamboos. As, during that time, rainy season was going on, for which, it was not possible on the part of the plaintiff for cutting and removing the bamboo trees from the Bamboo Orchard of Tubey, because, it was not practicable for plying the trucks for removing the Bamboos after its cutting from Tubey Bamboo Plantation. So, the plaintiff wrote a letter to the defendants on 04.09.1987 requesting to allow him 3 months more time for cutting and removing bamboos from Tubey Bamboo Orchard. After accepting such request of the plaintiff made through Letter No.4987, the defendant No.2 allowed the plaintiff up to 27.11.1987 for cutting and removing the bamboo trees from Tubey Bamboo Orchard and also allowed him (plaintiff) time up to 30.10.1987 for depositing the cost of 87,000 numbers of bamboos by issuing a letter vide Letter No.15585 dated 17.09.1987. But, before depositing the cost of bamboos i.e. Rs.99,700/-, the plaintiff visited the spot at Tubey Bamboo Orchard and found that, major portion of bamboos of all varieties are not in existence and the same have been stolen away by the local people of that area and some of the bamboos have been mixed with the soil due to the eating of the same by SA No.170 of 1991 Page 3 of 17 {{ 4 }} the white ants and there was only existence of 50% of bamboos out of the quantities indicated in the tender. After visiting the spot, the plaintiff wrote a letter to the defendant No.2 on 15.10.1987 about the physical existence of 50% out of 87000 bamboos in the Bamboo Orchard of Tubey and requested defendant No.2 for physical counting of the existing bamboos at Tubey Bamboo Orchard on or before 30.10.1987. So that, he(plaintiff) can deposit the amount at the rate furnished by the plaintiff in the tender. 4. Before physical verification of the bamboos at Tubey Bamboo Orchard, he (plaintiff) had quoted the rates in the tender paper on 25.01.1987. But, when the plaintiff physically visited in the month of October, 1987 to Tube Bamboo Orchard and found that, there are only 50% of bamboos of all varieties are available at Tubey Bamboo Orchard out of the quantities indicated in the tender, then, he(plaintiff) requested defendant No.2 for physical counting of the existing bamboos in Tubey Bamboo Orchard. But, the defendant No.2 without giving any reply and without considering the letter dated 15.10.1987 of the plaintiff tried to forfeit the security of the plaintiff and to cancel his tender and to allow other persons for cutting and removing the Bamboos from Tubey Bamboo Orchard. SA No.170 of 1991 Page 4 of 17 {{ 5 }} Then, without getting any way, the plaintiff approached the Civil Court by filing the suit vide T.S. No.181 of 1987 praying for directing the defendants to count the bamboos of all varieties, those are practically in existence in the Tubey Bamboo Orchard in presence of the plaintiff and to direct the defendant No.2 to receive the amounts of the counted bamboos, those are practically in existence and to restrain the defendants permanently from forfeiting, cancelling his tender and from allowing other persons from cutting and removing the bamboos from Tubey Bamboo Orchard along with other reliefs, to which, he (plaintiff) is entitled for, as the Court deems fit and proper. 5. Having been noticed from the Trial Court in the suit of the plaintiff vide T.S. No.181 of 1987, both the defendants contested the suit of the plaintiff by filing their written statement jointly by taking their stands inter alia therein that: The plaintiff has no cause of action to file the suit against them (defendants). The suit of the plaintiff is not maintainable. The suit of the plaintiff is bad/defect for non-serving of statutory notice on the defendants. The Court has no jurisdiction to try the case/suit filed by the plaintiff. The defendant No.1 has unnecessarily been added as the party. SA No.170 of 1991 Page 5 of 17 {{ 6 }} For which, the suit of the plaintiff is to be dismissed for misjoinder of the party. The further pleas/stands of the defendants after denying the averments made by the plaintiff in his plaint was that, the plaintiff in his application dated 21.05.1987 had stated that, he is willing to accept the offer of the defendant No.2 indicating the rates in his tender paper dated 28.01.1987, for which, the defendant No.2 sent a letter to the plaintiff on 03.07.1987, which was received by the plaintiff on 23.07.1987. It was not at all impossible on the part of the plaintiff for cutting and removing the bamboo trees from Tubey Bamboo Plantation. Because, the Tubey Bamboo Orchard is very nearer to the National Highway and even in the rainy season, there was no difficulty for cutting and removing the bamboos by the plaintiff through the trucks. But, in spite of that, facilities available with the plaintiff, the defendant No.2 had allowed him (plaintiff) 3 months’ time up to 27.11.1987 for cutting and removing the bamboos from Tubey Bamboo Orchard and had allowed him (plaintiff) to deposit the cost of the bamboos by 31.10.1987. The allegations of the plaintiff that, there was not physical existence of 50% of Bamboos of the invited tender in the Tubey Bamboo Orchard are not correct. The plaintiff had written a letter to the defendant SA No.170 of 1991 Page 6 of 17 {{ 7 }} No.2 on 15.10.1987 alleging that, physically 87,000 numbers of different varieties of bamboos are not in existence in Tubey Bamboo Orchard as he found on 12.10.1987 and requested for recounting the bamboos on or before 30.10.1987. But, while the said representation of the plaintiff was under scrutiny, he (plaintiff) approached the Civil Court by filing the suit vide T.S.No.181 of 1987 against them (defendants). The plaintiff for his own negligence and latches did not deposit the cost of bamboos. In fact, there was no cutting and removing of the bamboos from Tubey Bamboo Orchard by anybody. But, with some mala fide intention i.e. in order to delay the matter, the plaintiff has adopted the above method by alleging false allegations about the cutting and removing of the bamboo trees by the local persons. It was obligatory on the part of the plaintiff to deposit the cost of the bamboos, as the plaintiff had agreed for depositing the same within the allowed time period. But, instead of complying the same, he (plaintiff) has taken the false plea about the shortage of bamboo trees at the work site. As, without complying the obligations of the plaintiff and in order to avoid the deposit of the cost of the bamboos, he (plaintiff) has filed the suit alleging false allegations against the defendants praying for the above reliefs in the suit vide T.S. No.181 of 1987 against the defendants, for SA No.170 of 1991 Page 7 of 17 {{ 8 }} which, the plaintiff is not entitled for such reliefs as per law. Therefore, the suit of the plaintiff is liable to be dismissed against them (defendants) with cost. 6. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 5 numbers of issues were framed by the Trial Court in the suit vide T.S. No.181 of 1987 and the said issues are: ISSUES 1. 2. 3. 4. 5. Is there any cause of action to institute the suit? Is the suit maintainable in its present form? Is the plaintiff entitled for the mandatory injunction, as prayed for? Is the plaintiff entitled for the permanent injunction as prayer for? What other relief, if any, the plaintiff is entitled for? 7. In order to substantiate the aforesaid reliefs sought for by the plaintiff against the defendants, during the trial of the suit vide T.S. No.181 of 1987, he (plaintiff) examined him as P.W.1 and relied upon the documents vide Exts.1 to 5. But, none of the defendants examined any witness from their side, though, they (defendants) contested the suit of the plaintiff cross- examining the plaintiff (P.W.1). 8. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered all the issues against the plaintiff and in favour of the defendants and basing upon the findings and observations made by the trial court in all Page 8 of 17 SA No.170 of 1991 {{ 9 }} the issues against the plaintiff, the trial court dismissed the suit of the plaintiff vide T.S. No.181 of 1987 on contest against the defendants with cost as per its Judgment and decree dated 11.05.1989 and 28.06.1989 respectively assigning the reasons that, without depositing the cost of the bamboo trees as per the tender and agreement between the parties, the plaintiff cannot claim for counting the bamboos by the defendants through a mandatory injunction by the court. Because, the plaintiff himself has neglected in his duty in complying his obligation for depositing the cost of the bamboos as per his agreement with the defendant No.2. For which, the plaintiff is also not entitled for the decree of permanent injunction against the defendants by preventing them from cancelling his tender, for which, the suit of the plaintiff is liable to be dismissed against the defendants. 9. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiff vide T.S. No.181 of 1987 passed on dated 11.05.1989 and 28.06.1989 respectively against the plaintiff and in favour of the defendants by the trial court, he (plaintiff) challenged the same by preferring the 1st Appeal vide T.A. No.9 of 1990 being the appellant against the defendants by arraying them (defendants) as respondents. SA No.170 of 1991 Page 9 of 17 {{ 10 }} After hearing from both the sides, the 1st Appellate Court allowed that 1st Appeal vide T.A. No.9 of 1990 of the plaintiff (appellant) and set aside the Judgment and Decree of the dismissal of the suit of the plaintiff passed by the trial court in T.S. No.181 of 1987 as per the Judgment and Decree passed by the 1st Appellate Court in T.A. No.9 of 1990 on dated 09.04.1991 and 23.04.1991 respectively and decreed the suit of the plaintiff vide T.S. No.181 of 1987 and directed the defendants to count the existing bamboos in Tubey Bamboo Orchard, Angul in the district of Dhenkanal and also injuncted them (defendants) by restraining them (defendants) from forfeiting the security and from cancelling the tender of the plaintiff and from allowing other persons from cutting and removing the bamboo trees from Tubey Bamboo Orchard assigning the reasons that, no breach of contract on the part of the plaintiff was found and no valid contract between the plaintiff and defendants is established. Because, the plaintiff had proceeded into certain stage of the contract and the same was in the process of its completion but, the contract between the plaintiff and the defendant No.2 has not been completed. As the parties were in the process of negotiation and as there is no concluded contract between the parties, for which, the defendants cannot allege any breach of contract against the plaintiff and the suit of the plaintiff against SA No.170 of 1991 Page 10 of 17 {{ 11 }} the defendants without serving the statutory notice under Section 80 of the CPC was maintainable under law, because, the plaintiff was exempted as per Section 80(2) of CPC from serving the statutory notices under Section 80(1) of the CPC. 10. On being aggrieved with the aforesaid Judgment and Decree dated 09.04.1991 and 23.04.1991 respectively passed by the 1st Appellate Court in T.A. No.9 of 1990 in favour of the plaintiff and against the defendants IN setting aside the Judgment and Decree of the dismissal of the suit vide T.S. No.181 of 1987 passed by the trial court, the defendants challenged the same by preferring this 2nd Appeal being the appellants against the plaintiff by arraying him (plaintiff) as respondent. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. 1. Whether the suit for mandatory injunction is maintainable in the facts and in the circumstances of the case? 11. I have already heard from the learned counsel for the appellants (defendants) only, as, none appeared from the side of the respondent (plaintiff) for hearing of the 2nd Appeal. 12. The plaintiff has approached the Civil Court by filing the suit vide T.S. No.181 of 1987 against the defendants praying for directing the SA No.170 of 1991 Page 11 of 17 {{ 12 }} defendants to count the bamboo of all varieties, which are now in existence at Tubey Bamboo Orchard, Angul in the district of Dhenkanal in presence of the plaintiff and to direct to the defendant No.2 to receive the amount as per the counting of the existing bamboos at the rate quoted in the tender for each varieties and to restrain the defendants permanently from forfeiting and cancelling his security and tender and from allowing other persons from cutting and removing the bamboo from the work site. The document relied by the plaintiff vide Ext.2 is going to show that, the tender paper of the plaintiff for purchasing 87,000 numbers of both Salia and Kanta varieties of bamboos at the cost of Rs.99,700/- in total was accepted by the defendant No.2 and the plaintiff was requested to deposit a sum of Rs.99,700/- only with the A.S.C.O Angul towards the total cost of bamboos offered in the tender and to cut and lift the bamboos from the Tubey Bamboo Orchard at the own cost of the plaintiff within one month from the date of issuance of that order i.e. from 03.07.1987 after obtaining the T.T Permit from the D.F.O Angul by the own arrangement of the plaintiff, failing which, the accepted tender of the plaintiff shall be treated as cancelled and the deposited earnest money for the application of the tender shall be forfeited. SA No.170 of 1991 Page 12 of 17 {{ 13 }} Ext.4 relied by the plaintiff is going to show that, he (plaintiff) was allowed extension of time only up to 27.11.1987 for cutting and shifting the bamboos, failing which, the accepted tender of the plaintiff shall be treated as automatically cancelled and the earnest money will be forfeited accordingly and there was a request to the plaintiff to deposit Rs.99,700 towards the cost of Bamboos with the A.S.C.O, Angul on or before 31.10.1987 for issuance of work order to him (plaintiff). As per the own pleadings of the plaintiff, he (plaintiff) has not complied his obligations indicated in the Exts.2 and 4 in depositing Rs.99,700/- towards the cost of the Bamboos before the A.S.C.O, Angul and due to non-compliance of the said obligation of the plaintiff in depositing Rs.99,700/-, no work order was issued in favour of the plaintiff for cutting and removing the bamboo trees indicated in the accepted tender. Accordingly, the plaintiff has not complied the part of his obligation. As such, in spite of non-issuance of work order in favour of the plaintiff by the defendant No.2 for non-depositing the required amount towards the cost of the bamboos indicated in the Exts.2 and 4, the plaintiff has prayed in the suit to direct the defendants to count the the existing bamboos in Tubey Bamboo Orchard in his presence and also to SA No.170 of 1991 Page 13 of 17 {{ 14 }} direct the defendants to receive the amount as per the existing bamboos after its counting and to restrain the defendants permanently from forfeiting and cancelling the security and tender and from allowing other persons from cutting and removing the bamboos from Tubey Bamboo Orchard. The suit was filed by the plaintiff vide T.S. No181 of 1987 against the defendants on dated 27.10.1987. In the meantime, more than 36 years have already been passed. Due to passing of 36 years in the meanwhile from the date of filing of the suit by the plaintiff, it is immensely impossible to count the bamboos, those were in existence, on the date of inviting the tenders through tender call dated 05.01.1987 for selling. Because, the said bamboos must not have been in existence due to its ripening or otherwise. Because, it is natural that, bamboo trees shall not exist for 36 years. The life span of a bamboo tree is ordinarily 7 to 10 years. For which, under the above circcumstances, the decree for mandatory injunction passed by the 1st Appellate Court in T.A. No.9 of 1990 directing the defendants to count the existing bamboos, (those were in existence at the time of inviting the tender on 05.01.1987) can never be executed at the spot/field/site for the reasons stated above. Therefore, the SA No.170 of 1991 Page 14 of 17 {{ 15 }} decree for mandatory injunction passed by the 1st Appellate Court in T.A. No.9 of 1990 is held to be an ineffective and inexecutable decree. 13. It is the settled propositions of law that, no court should pass a decree knowing fully well that, it would not be executable, because of subsequent events including the passage of time and likewise, no court should pass a decree, which would be inexecutable and would be rendered infructuous. As the existence of those bamboos in Tubey Bamboo Orchard, Angul, which were indicated in the tender paper dated 05.01.1987 are impossible, for which, the decree for mandatory injunction passed by the 1st Appellate Court for counting the said bamboos cannot be held to be an effective decree. Therefore, the decree for mandatory injunction for counting the bamboos indicated as per tender paper dated 05.01.1987 is held to be a vague and unenforceable decree. So far as, the decree for permanent injunction passed by the 1st Appellate Court in favour of the plaintiff restraining the defendants from forfeiting the security and from cancelling the tender of the appellant and from allowing the other persons from cutting and removing the bamboos from the Tubey Bamboo Orchard are concerned; SA No.170 of 1991 Page 15 of 17 {{ 16 }} When the plaintiff has accepted the letters of the defendant No.2 vide Exts.2 and 4 and when there was specific conditions in the said letters vide Exts.2 and 4 that, after depositing Rs.99,700/- by the plaintiff towards the cost of the bamboos before the A.S.C.O, Angul on or before 31.10.1987 for issuance of the work order in his favour, the work order in favour of the plaintiff shall be issued, failing which, the tender of the plaintiff shall be treated as cancelled and the earnest money deposited by him (plaintiff) for submission of the tender paper shall be forfeited and when, the plaintiff has prayed for permanent injunction against the defendants in the suit vide T.S. No.181 of 1987 to restrain the defendants permanently from forfeiting and cancelling his security and tender and from allowing other persons from cutting and removing the bamboos from the work site without depositing the above required amount i.e. Rs.97,000/- as per Exts.2 and 4 and without any work order in his favour, then at this juncture, the plaintiff is not entitled for the decree of permanent injunction against the defendants to restrain them (defendants) permanently from cancelling his security and tender and from allowing other persons from cutting and removing the bamboos from the work site. For which, the Judgment and Decree i.e. permanent injunction passed by the 1st Appellate Court in favour of the plaintiff and against the SA No.170 of 1991 Page 16 of 17 {{ 17 }} defendants in T.A. No.9 of 1990 restraining/injuncting the defendants permanently from forfeiting the security and from cancelling the tender of the plaintiff and from allowing other persons from cutting and removing the bamboos from the Tubey Bamboo Orchard also cannot be sustainable under law. Therefore, there is justification under law for interfering with the Judgment and decree passed by the 1st Appellate Court in T.A. No.9 of 1990 through this 2nd Appeal filed by the appellants (defendants). 14. As such, there is merit in the appeal of the appellants. The same must succeed. 15. In the result, the 2nd Appeal filed by the appellants (defendants) is allowed on merit. 16. The Judgment and decree dated 09.04.1991 and 23.04.1991 respectively passed by the 1st Appellate Court in T.A. No.9 of 1990 are set aside and the Judgment and Decree regarding the dismissal of the suit of the plaintiff (respondent in this 2nd Appeal) vide T.S. No.181 of 1987 passed by the trial court are confirmed. Orissa High Court, Cuttack. Rati Ranjan Nayak// Senior Stenographer Date:29.02.2024 Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 01-Mar-2024 12:23:59 SA No.170 of 1991 (A.C. Behera), Judge. Page 17 of 17