Sangamesh Printing Press Vs. Chief Executive Officer, Taluk Development Board
EmailAppeal: Civil Appeal No. 4844 of 1989
Petitioner: Sangamesh Printing Press
Respondent: Chief Executive Officer, Taluk Development Board
Apeal: Civil Appeal No. 4844 of 1989
Judges: B.N. KIRPAL & D.P. MOHAPATRA, JJ.
Date of Judgment: Jun 01, 1999
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Order 1 Rule 10 – Recovery suit – Appeal before High Court – Same dismissed for want of approval of contract by Board – Application for impleadment of State moved but not decided. Held that High Court should have decided the application. Matter remanded.
Civil Procedure Code, 1908
Order 1 Rule 10 – Recovery suit – Appeal before High Court – Same dismissed for want of approval of contract by Board – Application for impleadment of State moved but not decided. Held that High Court should have decided the application. Matter remanded.
Held:
What is, however, important is that the High Court did not deal with the application under Order 1 Rule 10 CPC. If the application was not allowed then, possibly, there would have been no occasion to deal with the contention raised on the basis of Section 70 for the suit would be liable to be dismissed for not impleading the State Government. But if the High Court had chosen to allow the application, then different consequences may have followed. The High Court should have decided the appellant’s application under Order 1 Rule 10 CPC and, thereafter, proceeded to hear the appeal in question. Not having disposed of the appli-cation under Order 1 Rule 10 has caused serious prejudice to the appellant. The High Court should first deal with the application under Order 1 Rule 10 CPC which is pending before it and then proceed to dispose of the appeal in accordance with law. (Paras 8 & 9)
JUDGEMENT:
ORDER
1. The appellant (plaintiff) which is a registered firm had filed a suit against the Chief Executive Officer, Taluk Board for recovery of Rs. 51,036.60 being the price and interest thereon in respect of the printed forms and registers which had allegedly been supplied to the defendant (respondent herein).
2. In the plaint which was filed, it was, inter alia, alleged that an agreement had been entered into between the plaintiff and the defendant on the basis of which the aforesaid goods were supplied. In para 2 of the plaint, it was stated that a contract had been entered into between the parties after approval of the Taluk Board.
3. In the written statement which was filed, various objections were taken. It was, inter alia, submitted that no valid contract had been entered into and supply had been made by the plaintiff unauthorisedly. There was also an objection taken with regard to the validity of the notice issued by the plaintiff.
4. On the pleadings of the parties, the following issues were framed:
“(1) Whether the plaintiff firm is a registered partnership firm?
(2) Whether the plaintiff proves that the defendant has entered into a contract of supply of forms and registers as alleged in plaint para 2?
(3) Whether the notice issued by the plaintiff is legal and valid?
(4) Whether the plaintiff is entitled to interest?
(5) Whether the defendant proves that the plaintiff has unauthor-isedly delivered the bundles of forms and registers in the office of the defendant?
(6) Whether the defendant proves that this Court has no territo-rial jurisdiction to try the suit as contended in para 11 of the written statement?
(7) What order or decree?”
5. Except for Issue 3, the trial court decided Issues 1, 2, 4, 5 and 6 in favour of the plaintiff, but came to the conclusion that as the suit had been filed against a government official, the plaintiff should have complied with the provisions of Order 27 Rule 5-A CPC and impleaded the State as a party. As the State had not been impleaded in the said suit, therefore, the suit was liable to be dismissed. For this reason, Issues 3 and 7 were decided against the plaintiff.
6. In appeal, the High Court chose not to decide the correctness of the decision of the trial court with regard to Issues 3 and 7. It came to the conclusion that Issue 2 had been wrongly decided in favour of the plaintiff, inasmuch as the plaintiff had led no evidence to show that the Taluk Board had ever approved the execution of the contract between the parties. For this reason, the appeal filed by the appellant herein was dismissed.
7. It is submitted by the learned counsel for the appellant that in order to get over the difficulty faced by it as a result of the decision of the trial court with regard to Issue 3, an appli-cation under Order 1 Rule 10 CPC had been filed in the High Court in the instant case praying for impleadment of the State of Karnataka as one of the defendants. It is not in dispute that the said application has not been decided, but the appeal has been disposed of. We find that the decision of the High Court with regard to Issue 2 appears to be correct, inasmuch as no evidence has been led by the appellant to show the approval of the Taluk Board to the contract which was alleged to have been entered into between the parties. But the matter does not end here. Learned counsel for the appellant sought to invoke the provisions of Section 70 of the Contract Act and it was contended that the trial court had found that the order was placed on the appellant after quotations had been invited. He submits that it is clear that the work was not undertaken by the appellant gratuitously and such supplies had been made by it, then applying the princi-ple of quantum meruit in respect to the work done, the appellant was entitled to be paid in respect thereof. It is, therefore, contended that while deciding Issue 7 the High Court ought to have given the relief prayed for.
8. It appears that the contention based on Section 70 of the Contract Act was not raised before the High Court. Nevertheless on the basis of the findings recorded by the trial court, the High Court could have considered the applicability of Section 70 to the facts of the present case. What is, however, important is that the High Court did not deal with the application under Order 1 Rule 10 CPC. If the application was not allowed then, possibly, there would have been no occasion to deal with the contention raised on the basis of Section 70 for the suit would be liable to be dismissed for not impleading the State Government. But if the High Court had chosen to allow the application, then different consequences may have followed.
9. Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 CPC and, thereaft-er, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No. 29 of 1987 to its file. The High Court should first deal with the applica-tion under Order 1 Rule 10 CPC which is pending before it and then proceed to dispose of the appeal in accordance with law.
10. The appeal is, accordingly, disposed of. There will be no order as to costs.
1. The appellant (plaintiff) which is a registered firm had filed a suit against the Chief Executive Officer, Taluk Board for recovery of Rs. 51,036.60 being the price and interest thereon in respect of the printed forms and registers which had allegedly been supplied to the defendant (respondent herein).
2. In the plaint which was filed, it was, inter alia, alleged that an agreement had been entered into between the plaintiff and the defendant on the basis of which the aforesaid goods were supplied. In para 2 of the plaint, it was stated that a contract had been entered into between the parties after approval of the Taluk Board.
3. In the written statement which was filed, various objections were taken. It was, inter alia, submitted that no valid contract had been entered into and supply had been made by the plaintiff unauthorisedly. There was also an objection taken with regard to the validity of the notice issued by the plaintiff.
4. On the pleadings of the parties, the following issues were framed:
“(1) Whether the plaintiff firm is a registered partnership firm?
(2) Whether the plaintiff proves that the defendant has entered into a contract of supply of forms and registers as alleged in plaint para 2?
(3) Whether the notice issued by the plaintiff is legal and valid?
(4) Whether the plaintiff is entitled to interest?
(5) Whether the defendant proves that the plaintiff has unauthor-isedly delivered the bundles of forms and registers in the office of the defendant?
(6) Whether the defendant proves that this Court has no territo-rial jurisdiction to try the suit as contended in para 11 of the written statement?
(7) What order or decree?”
5. Except for Issue 3, the trial court decided Issues 1, 2, 4, 5 and 6 in favour of the plaintiff, but came to the conclusion that as the suit had been filed against a government official, the plaintiff should have complied with the provisions of Order 27 Rule 5-A CPC and impleaded the State as a party. As the State had not been impleaded in the said suit, therefore, the suit was liable to be dismissed. For this reason, Issues 3 and 7 were decided against the plaintiff.
6. In appeal, the High Court chose not to decide the correctness of the decision of the trial court with regard to Issues 3 and 7. It came to the conclusion that Issue 2 had been wrongly decided in favour of the plaintiff, inasmuch as the plaintiff had led no evidence to show that the Taluk Board had ever approved the execution of the contract between the parties. For this reason, the appeal filed by the appellant herein was dismissed.
7. It is submitted by the learned counsel for the appellant that in order to get over the difficulty faced by it as a result of the decision of the trial court with regard to Issue 3, an appli-cation under Order 1 Rule 10 CPC had been filed in the High Court in the instant case praying for impleadment of the State of Karnataka as one of the defendants. It is not in dispute that the said application has not been decided, but the appeal has been disposed of. We find that the decision of the High Court with regard to Issue 2 appears to be correct, inasmuch as no evidence has been led by the appellant to show the approval of the Taluk Board to the contract which was alleged to have been entered into between the parties. But the matter does not end here. Learned counsel for the appellant sought to invoke the provisions of Section 70 of the Contract Act and it was contended that the trial court had found that the order was placed on the appellant after quotations had been invited. He submits that it is clear that the work was not undertaken by the appellant gratuitously and such supplies had been made by it, then applying the princi-ple of quantum meruit in respect to the work done, the appellant was entitled to be paid in respect thereof. It is, therefore, contended that while deciding Issue 7 the High Court ought to have given the relief prayed for.
8. It appears that the contention based on Section 70 of the Contract Act was not raised before the High Court. Nevertheless on the basis of the findings recorded by the trial court, the High Court could have considered the applicability of Section 70 to the facts of the present case. What is, however, important is that the High Court did not deal with the application under Order 1 Rule 10 CPC. If the application was not allowed then, possibly, there would have been no occasion to deal with the contention raised on the basis of Section 70 for the suit would be liable to be dismissed for not impleading the State Government. But if the High Court had chosen to allow the application, then different consequences may have followed.
9. Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 CPC and, thereaft-er, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No. 29 of 1987 to its file. The High Court should first deal with the applica-tion under Order 1 Rule 10 CPC which is pending before it and then proceed to dispose of the appeal in accordance with law.
10. The appeal is, accordingly, disposed of. There will be no order as to costs.
