Nagar Parishad Alwar v. Gurmit Singh & Anr.

1. This Regular Second Appeal is filed against the concurrent judgments of the courts below; of the trial court dated 4.1.2012 and the first appellate court dated 14.5.2013; by which the suit of the respondent/plaintiff for recovery has been decreed against the appellant (defendant no.2) for a sum of Rs.92,793/- alongwith interest @ 10% per annum simple. The suit has been decreed not only against the appellant who was defendant no.2 but also against the defendant no.1 who was a contributory under the scheme. 2014:DHC:1345

2. The facts of the case are that the appellant/defendant no.2 took out a scheme for feeding the poor which was known as ‘Akshay Kalewa Yojana’. As per this scheme, the poor were to be fed by giving a plate/thali of food at Rs.10/-. An MOU dated 31.8.2007 for this purpose was entered into between the plaintiff as party no.3, defendant no.1 as party no.2 and defendant no.2 as party no.3. For the food thali/plate, the plaintiff was to receive Rs.5/- from the public and an amount of Rs.2.50/- was to be received from the appellant-Nagar Parished and an amount of Rs.2.50/- from the defendant no.2-company which was contributing to the social purpose of feeding the poor by making a contribution of Rs.2.50/- per plate. The respondent no.1/plaintiff in terms of the scheme performed the scheme up to 18.3.2008 and which was for around a period of five months. Respondent no.1/plaintiff was however not paid the sum of Rs.2.50/- per plate/thali from the defendant no.1/company for various months and which amount totaled to a sum of Rs.92,793/-. Respondent no.1/plaintiff therefore filed the subject suit for recovery of this amount alongwith interest.

3. The courts below have held that no doubt as per the MOU dated 1.9.2007 liability for an amount of Rs.2.50/- each was separately upon the appellant/defendant no.2 and the respondent no.2/defendant no.1, however this position underwent a change in terms of the office order of the appellant/defendant no.2 dated 13.3.2008 and which reads as under:- “ Office of Nagar Parished, Alwar (Rajasthan) (Office Order) Akshay Kaleva Scheme was started in the month of June, 2007 according to order received from Autonomous Administration Department. In the scheme Rs.5/- was to be incurred by the beneficiary, Rs.2.50/- was to be incurred by the Nagar Parished and Rs.2.50/- was to be incurred by Omway Buildestate, New Delhi. No amount as consented Rs.2.50/- per persons has been paid by Omway Builders from November, 2007 till today. At present Omway Builders has shown its incapability to pay such amount due to financial problems. At present Akshay Kaleva Scheme is on the verge of closure due to non-receipt of contribution. Thus instruction has been received from Chairman of Nagar Parished that contribution of Omway India of Rs.8652/- and Rs.9892/- total amount of Rs.18544/- for the month of November, 2007 and December, 2007 for the centre of Akshay Kaleva at UTI community Centre be approved to be given to Gurmeet Singh by Nagar Parished. Upon receipt of amount from Omway Builders the amount will be deposited in the account of Parished and will not be given to contractor. Sd/- Commissioner Nagar Parished, Alwar Date-13.3.2008”

4. Relying on the aforesaid admitted document being the office order of the appellant dated 13.3.2008, the suit has been decreed under Order 12(6) CPC against the appellant for the sum of Rs.92,793/- alongwith interest.

5. In this case, though originally a defence of territorial jurisdiction was taken up, but the same was not pressed inasmuch as the issue of territorial jurisdiction though taken in the written statement was not argued at the time of passing of the judgment by the trial court on 4.1.2012. The fact that this issue was not pressed before the trial court becomes clear from the fact that no application was filed before the trial court that issue of territorial jurisdiction was argued/pressed but not decided. Also, no ground was raised in the grounds of appeal by the appellant in the first appeal that the issue of territorial jurisdiction was pressed before the trial court. Further, the issue of territorial jurisdiction was not even pressed/argued before the first appellate court because the judgment of the first appellate court dated 14.5.2013 does not deal with this aspect and no application has been filed before the first appellate court that the issue of territorial jurisdiction was argued but was not decided by the appellate court. Issues of pecuniary and territorial jurisdiction of the courts are such rights which can be waived and this is specifically provided in Section 21 of Code of Civil Procedure, 1908 (CPC). Therefore, the objection as to territorial jurisdiction having not been pressed before the courts below, the same is deemed to have been given up and no objection can be entertained by this court for the first time in this Regular Second Appeal.

6. So far as the issue of whether there is an admission under Order

12 Rule 6 CPC for decreeing of the suit, in my opinion, the order of the Nagar Parished dated 13.3.2008 makes the issue clear. The appellant had very rightly taken over the liability of the defendant no.1 in the subject case because after all it is not as if the plaintiff/respondent no.1was a very rich person. The plaintiff was only providing food as per the scheme for feeding poor persons at Rs.10/- per plate/thali. Appellant therefore in amendment of terms to the contrary in the MOU dated 1.9.2007, issued its office order dated 13.3.2008 to pay the plaintiff, and thereafter for the amount to be paid by the defendant no.1 in the suit (respondent no.2 herein) to the appellant herein and which was to be adjusted against its dues.

7. A second appeal under Section 100 CPC is maintainable only if a substantial question of law arises. In my opinion, once the order dated 13.3.2008 shows that the appellant took over the liability of the defendant no.1 in the suit, then, no substantial question of law arises for the concurrent judgments of the courts below to be interfered with.

8. The Regular Second Appeal is therefore dismissed, leaving the parties to bear their own costs.

MARCH 11, 2014 VALMIKI J. MEHTA, J. Ne