ORDER
M.R. Verma, J.
1. This suit has been instituted by the plaintiff for recovery of Rs. 14,64,111/- on account of damages along with interest @ 18% per annum with effect from 1-8-1997 till the realisation of the suit amount.
2. Case of the plaintiff, in brief, is that in the year 1980, he purchased Deodar, Kail, Rai and Fir trees of different classes from Mania, Jhuiyan, Dhaju etc. of village Tali. Such trees were standing on land Khasra Nos. 8/1 to 8/9, situate in Chak Dabur. within Forest Range, Deha, Teh. Theog, Distt. Shimla. The trees were so purchased for the purpose of sale in accordance with law, after converting them into timber. The plaintiff got the aforesaid land demarcated from the competent revenue officials in the presence of the officials of Forest Department and thereafter the trees were marked by the Forest Officials as per the permission accorded by the Divisional Forest Officer, Shimla. The trees so purchased were felled by the plaintiff and were converted into timber, i.e. 797 scants of Deodar (volume 2269.27 cft.), 457 scants of Kail (volume 1520/29 cft.) and 584 scants of Rai (volume 1893/22 cft.). However, the timber was seized by the Forest Department on the ground that the trees were illicitly felled and cases under Sections 41/42 of the Indian Forest Act, Sections 3, 4 and 16 of the H. P. Land Preservation Act were instituted against the plaintiff. On submission of the charge-sheets, such cases were registered as Criminal Cases Nos. 368/1 of 1983, titled State v. Anant Ram and Ors. : 274/1 of 1982 titled State v. Jhuyan and Ors. : 365/1 of 1983 titled State v. Anant Ram and Ors. and 1/1 of 1984 titled State v. Anant Ram and Ors.. In all the aforesaid cases, plaintiff and others-were acquitted vide judgments dated 31-3-1986, 27-9-1985, 30-6-1986 and 27-9-1985. However, the trial Court ordered confiscation of the case property i.e. the seized timber in favour of the State. The plaintiff preferred revisions/appeals in the Court of the learned Sessions Judge, Shimla against the orders of confiscation of timber passed by the trial Court. The Sessions Judge ordered release of the seized timber in favour of the rightful owner. The State preferred review petitions against the release order passed by the learned Sessions Judge which were dismissed. The State then preferred Revision Petitions Nos. 32, 44, 45 and 31 of 1988 against the orders of the Sessions Judge, dismissing the review petitions. The revision petitions were dismissed by the High Court vide its judgments dated 22-12-1992.
3. The timber which was seized and taken in possession by the Forest Department remained lying under the open sky and was stacked in a negligent manner and was thus decaying and rotting. The application was, therefore, filed in the Court of the learned Sessions Judge, Shimla praying that seized timber which was deteriorating be put to auction. The application was allowed by the learned Sessions Judge and the trial Court was directed that the timber be put to auction by the Divisional Forest Officer through Forest Corporation after due publicity in accordance with law. The plaintiff was also allowed to join the auction. The compliance of this order was made time bound. The State, however, moved an application in the Court of Session Judge on 23-3-1982, claiming that the case stood admitted in the High Court and the High Court has ordered that it is ensured that the case property is not destroyed by the quarter concerned, which is required to be produced before the High Court at the time of the hearing of the appeal, whereas no such orders were passed by the High Court. However, on the application of the State, the Sessions Judge was persuaded to pass the orders that the case property be not auctioned till further orders. However, during the pendency of the revision petitions, the High Court, vide its order dated 26-8-1988, ordered that the seized timber be put to auction by defendant No. 4 in accordance with the rules and procedure within a period of six weeks from the date of order and the net sale proceeds be deposited in the Registry of the High Court within two weeks from the date of the auction. Defendant No. 4 sent a telegraphic message dated 3-11-1988 to the plaintiff to attend the auction at Parwanoo on 4-11-1988. The telegram was received at Post Office, Kotkhai on 5-11-1988 and was delivered to the plaintiff on 9-11-1988 and this intimation to the plaintiff was deliberately delayed to avoid affording opportunity to him to attend the auction. The plaintiff objected to the legality of the auction on the ground that he was not given timely intimation and that superior quality and grade of timber had been sold at throw away prices. It is also claimed that deliberate attempt had been made by defendant No. 4 to sell the Umber in a manner so as to deprive the plaintiff of his valuable right resulting in great financial loss to him and the auction itself was deliberately delayed despite orders of the Court. The plaintiff moved an application in the High Court for release of the amount deposited by defendant No. 4 after the auction of the timber but he was directed by the High Court to approach the trial Court for the purpose. Plaintiff then moved applications Nos. 2/4, 4/4, 6/4 and 1/4 of 1994 in the trial Court which were allowed on 16-8-1994. As per the intimation given by defendant No. 4 orally, the auction price of the timber was Rs. 4,32,233/- and this amount has been received by the plaintiff. However, according to the plaintiff, the price of the seized timber in terms of the rates fixed and notified vide communication dated 29-4-1988 works out to Rs. 10,0489/-. Therefore, the plaintiff claims to be entitled to the remaining value of Rs. 5,68,256/- and interest thereon @ 18% per annum with effect from 27-10-1988 till 31-7-1997. Hence this suit for Rs. 14,64,111/-.
4. Defendants contested the claim of the plaintiff. Defendants 1 to 3, in their written statements, raised preliminary objections that the suit is time-barred; that the notice under Section 80, CPC has not been served before the institution of the suit; that the plaintiff is estopped from filing the suit and that the suit is hit by the principle of res judicata. On merits, while admitting the seizure of the timber as alleged in the plaint, it has been claimed that the plaintiff had illicitly felled the trees, inasmuch as he had not obtained the felling orders as required under the law. Thus, this being a case of illicit felling of trees, the timber was lawfully seized. Since the matter regarding disposal of the case properly remained pending in different Courts for consideration, therefore, the disposal of the case property took some time. The plaintiff, however, has failed to show that he is the rightful owner of the property. The averments in the plaint vide paras 8, 10 and 14 have been left unanswered on the ground that these pertain to defendants 4 and 5. It is also claimed that the case against the plaintiff failed on a technical ground and that the value as claimed in fact has been assessed on the basis of rates fixed for the supply of timber to small scale industries, which do not apply to the market value of the private timber. Thus, the claim of the plaintiff has been denied.
5. Defendants 4 and 5, in their separate written statements, apart from the preliminary objections as raised by defendants 1 to 3, have further claimed that the suit is liable to be dismissed under Order 7. Rule 1l(b) of the Code of Civil Procedure and that the suit is not properly valued for the purposes of Court-fee and jurisdiction. On merits, the replying defendants have not offered comments about paras 1 to 6, 12, 13 and 14 of the plaint on the ground that these pertain to defendants 1 to 3. Regarding other averments, it has been claimed that the time fixed by the High Court for disposal of the case property was very short, therefore, they had to apply for extension of time up to 28-2-1989 which was accorded. The complete timber, however, could not be sold even by 28-2-1989, therefore, further extension was sought from the High Court and the timber was, thus, finally sold by 5th of March, 1991. It is also claimed that the plaintiff was given due intimation about the auction scheduled to be held on 4-11-1988. The negligent stacking and gradation of the timber has been denied. It is further claimed that since the auction of timber was getting delayed and it was not obligatory on the replying defendants to associate the plaintiff in the auction, therefore, the timber was put to auction as it was already in a very bad condition and had rotten. In fact because of the condition of the timber, at the relevant time, it had become very difficult to sell the same and the timber had to be put to auction repeatedly from 4-11-1988 to 5-11-1991. How ever, the auctions were conducted in accordance with the prevalent practice and procedure. It is also claimed that the rates as fixed vide letter dated 19-4-1988 are applicable to the supply of timber of small scale industries and are for 'A' class/Samudha and special timber and such rates cannot be made applicable to the timber in question. Thus, defendants 4 and 5 have also denied the claim of the plaintiff.
6. Plaintiff filed replications to the writ ten statements filed by the defendants wherein the grounds of defence as taken in the written statements have been denied and the claim as made in the plaint has been reaffirmed.
7. On the pleadings of the parties, the following issues were framed :
1. Whether 797 scants of Deodar total volume 2269.27 cft, 457 scants of Kail volume 1520.29 cft, 585 scants of Rai volume 1893.22 cft belonging to the plaintiff were wrongfully seized by the defendants from the custody of the plaintiff, as alleged? OPP.
2. What was the value of the timber so seized by the defendants? OPP.
3. Whether defendants failed to take due care to preserve the quality and quantity of the seized timber resulting in deterioration in the quality and value of the seized timber, if so its effect? OPP.
4. Whether the defendants 4 and 5 derelicted in conducting the sale of the seized timber without due publicity about auction thereof behind the back of the plaintiff resulting in fetching low sale price of the timber, as alleged? OPP.
5. Whether the defendants 4 and 55 intentionally and unjustifiably failed to render true and proper accounts of the volume and sale proceeds of the seized timber which was taken over by them from defendants 1 to 3 as alleged? OPP.
6. Whether the plaintiff is entitled for the amount claimed or any other amount as compensation for damages caused by the negligent acts, deeds and conduct of the defendants and from whom? OPP.
7. Whether the suit is Lime-barred? OPD.
8. Whether the plaintiff has no cause of action to institute the present suit? OPD.
9. Whether a notice under Section 80, CPC has not been duly and properly served by the plaintiff on the defendants? OPD.
10. Whether the plaintiff is estopped from instituting the present suit due to his acts of omission and commission? OPD.
11. Whether the suit is barred by the principles of res judicata? OPD.
12. Whether the suit has not been properly valued for the purposes of Court-fee and jurisdiction? OPD.
13. Whether the suit is liable to be dismissed under Order 7, Rule 11(d) of the CPC? OPD 4 and 5.
14. Relief.
8. Parties led evidence.
9. I have heard the learned counsel for the parties and have also gone through the records.
10. My findings on the issues aforesaid are as follows,
Issue No. 1
11. It is not in dispute that the timber scants were seized by the officials of defendants Nos. 1 to 3 as claimed by the plaintiff. The dispute, however, is about the legality or otherwise of the seizure. According to the plaintiff, the timber scants in suit which he had converted from the trees purchased by him from different land owners, were wrongly and unlawfully seized by the officials of defendants Nos. 1 to 3, whereas the stand of defendants Nos. 1 to 3 is that the plaintiff had felled the trees from which the seized scants were extracted without the prior permission of the competent Forest Authority, therefore, the felling of the trees and extraction of timber being illegal, the timber was lawfully seized and the plaintiff was duly prosecuted for his illegal acts.
12. It was contended by the learned counsel for the plaintiff that at the relevant time when the trees were felled and timber was extracted, there was no law, rule or notification in force which required permission of any authority of the Government whatsoever for felling and conversion of the trees into timber. On the other hand, it was contended by the learned Law Officer that it is admitted case of the plaintiff that he did not obtain any sanction/licence from any authority for felling of the trees, therefore, the felling of the trees was in contravention of the provisions of Section 4 of the H.P. Land Preservation Act, 1978 and Sections 10 and 11 of the H. P. Private Forest Act. 1955. It was further contended that the area from which the trees were felled, was covered by notification Ext. DW-3/A issued under Section 3 of the H. P. Land Preservation Act. therefore, the trees could not be felled from the area concerned during the period the plaintiff felled the trees.
13. The relevant portion of Section 4 of the H. P. Land Preservation Act reads as under :--
'4. Power to regulate, restrict or prohibit. by general or special order, within notified areas, certain matters.-- In respect of areas notified under Section 3 generally or the whole or any part of any such area, the State Government may, by general or special order, temporarily regulate, restrict or prohibit--
(a) to (b) xxx xxx xxx(c) the cutting of trees of timber, or the collection or removal or subjection to any manufacturing process, otherwise than as described in Clause (b) of this section, of any forest produce other than grass save for bona fide domestic or agricultural purposes of a right holders in such area.(d) to (g) xxx xxx xxx'
14. It is evident from a bare reading of the above provisions that cutting of timber trees from an area notified under Section 3 of the Act, can by a general or special order be prohibited. However, these provisions will not apply to an area which is not notified under Section 3 of the Act and unless general or special order as provided is issued.
15. Section 3 of the H. P. Land Preservation Act reads as under :--
'3. Notification of areas.-- Whenever it appears to the State Government that it is desirable to provide for the conservation of sub-soil water or the prevention of erosion in any area subject to erosion or likely to become subjected to erosion, the State Government may, by notification published in the Official Gazette, make a direction accordingly.'
16. The above provisions empowers the State Government to issue directions for conservation of sub-soil and prevention of erosion in an area, by notification published in the Official Gazette.
17. The defendants have produced in evidence a document Ext. DW-3/A and it was contended that this is the notification issued by the State Government prohibiting felling of trees in the concerned area and in view of Ext. DW-3/A the trees could not be telled by the plaintiff. Therefore, the felling of the trees by the plaintiff being in contravention of Section 4 of the H. P. Land Preservation Act, the timber was legally seized.
18. A bare perusal of Ext. DW-3/A shows that it is not a notification under Section 3 of the H. P. Land Preservation Act but is a notice by the Deputy Commissioner, Shimla under Section 8 of the said Act inviting claims, if any, from the affected persons for compensation.
19. This notice Ext. DW-3/A refers to a notification under Section 3 of the H. P. Land Preservation Act issued by the State Government and such notification appears to have been made operative for a period of three years w.e.f. 1-3-1979. It is, however, not indicated as to what were the prohibitions imposed under such notification. In any case, the prohibition(s), if any, thereby imposed were to be effective temporarily for a period of three years, therefore, it was to be effective only up to 28-2-1982. It is not the case of anyone that by any other notification the period specified in the said notification was ever extended or any general or special order under Section 4 (supra) was ever issued.
20. A perusal of the documents Exts. DA, DB, DC and DD reveals that the trees in question were felled during the period July 1982 to November 1982 and the felling was detected on 31-7-1982, 12-11-1982 and 13-11-1982. Therefore, at the material time no notification under Section 3 of the H. P. Land Preservation Act was operative. In these circumstances, felling of the marked trees by the plaintiff without permission was not prohibited. This fact led the concerned Criminal Courts not only to acquit the plaintiff of the accusations against him but also to direct release of the seized timber in favour of the rightfull owner and such orders passed by the Criminal Courts became final between the parties.
21. Section 10 of the H. P. Private Forest Act reads as under :--
'10. Restriction of right of landlord or persons claiming through landlord to cut or remove timber or forest produce.-- The landlord, or a lessee or other person claiming through the landlord, shall not cut or remove or permit any person to cut or remove any tree, timber or other forest produce in or from any notified forest so as to effect the right of any person which such person may, subject to any rules made under this Act, enjoy under any custom or usage.'
22. Section 11 of the H. P. Private Forest Act reads as under :--
'11. Grant of licence to fell trees and fees for sale of trees Preparation of a working plan.-- (1) A Forest Officer may, on the application of the landlord or owner, grant a licence for the felling of trees for such purpose and with such conditions as he may deem proper keeping in view the necessity for conservation of soil and moisture and the interest of the general public, and thereupon it shall be lawful for the landlord or the owner to carry out felling in accordance with the terms of the licence.
(2) The landlord or owner selling trees shall pay 15% of the sale price as fees to the State Government and the timber shall not be removed from the forest unless fees have been paid.
(3) The owner may exercise the option of selling the trees either through the Forest Department or direct to any contractor. In the event of selling the trees direct, the owner shall have to pay 15% fees as prescribed above on the price of the trees calculated in accordance with the prescribed principles.'
23. It is evident from a bare perusal of the provisions of Sections 10 and 11 (supra) that they apply to felling of trees in or from a notified forest.
24. Section 4 of the H. P. Private Forest Act authorises the State Govt. to prohibil cutting/felling of trees in a private forest by a notification. It follows that provisions of Sections 10 and 11 will apply only to such private forests regarding which a notification under Section 4 has been issued.
25. Copy of any such notification concerning the area wherein the trees were felled has not been produced by the defendants nor any Official Gazette wherein such notification might have been published, has been referred to or produced, therefore, in the absence of any evidence, oral or documentary having been led by the defendants, it cannot be said that the area from which the trees were felled was an area notified under Section 4 of the H. P. Private Forest Act. This being so, provisions of Sections 10 and 11 of the H. P. Private Forest Act prohibiting the felling of the trees in a notified private forest without a licence, are not applicable to the case in hand.
26. In view of the above discussion, it is held that the plaintiff lawfully felled the trees and converted them into scants. Since the trees were not illicitly felled as claimed by defendants Nos. 1 to 3, therefore, the seizure of the scants from admitted possession of the plaintiff was not warranted by law. This issue is accordingly decided in favour of the plaintiff.
Issue No. 3
27. The plaintiff (PW-9) has stated that after seizure of the scants the defendants did not make any appropriate arrangements for the safe and proper custody of the timber. The seized timber was kept lying in the open exposed to rain and sun during the period 1982 to 1991. Sant Ram (PW-9) has corroborated the statement of the plaintiff regarding failure of the defendants to take steps for safe custody and protection of the seized timber. Some timber at the time of auction was found rotten and was auctioned as Class 'C' timber as stated by S. D. Sharma (PW-8). There is no cogent and reliable evidence to rebut these statements. It is not the case of the defendants that the timber when taken in possession was in rotten condition. It is also not in dispute that the timber was taken in possession in the year 1982 and was subsequently handed over to the Forest Corporation for sale which sold the timber in different lots and completed the sale by the year 1991, i.e. the defendants Nos. 4 and 5 took about eight years for sale of the timber. There is no evidence that during all these eight years, the timber was stacked in sheds or other safe places to save and protect it from the sun and rains and thus the defendants were negligent in taking due care to preserve the quality of the timber leading to deterioration in the quality of the timber.
28. In view of the above discussed evidence, it is held that the defendants failed to take due care to preserve the seized timber from the effects of sun and rains leading to deterioration in its quality. This issue is accordingly decided in favour of the plaintiff.
Issue No. 4
29. The plaintiff has not led any cogent and reliable evidence to prove that defendants Nos. 4 and 5 derelicted in conducting the sale of timber without due publicity of the auctions held. It is, however, admitted case of the parties that the plaintiff was not present at the time of auction, though the owner of the property is admittedly informed of the date of auction. According to the plaintiff, he could not be present at the time of the auctions as the same were conducted without due notice to him. The plaintiff (PW-9) has stated that he was once given untimely intimation of date of auction and none thereafter. This statement of the plaintiff remains unrebutted. However, from this it cannot be inferred that had the plaintiff been present at the auction, the auction money would have been higher, particularly in view of the fact that the auctioned timber was not properly preserved for a long period of 8 to 9 years.
30. In view of the above discussion, the plaintiff has failed to prove this issue and it is accordingly held against the plaintiff.
Issue No. 5
31. The plaintiff (PW-9) or any of his witnesses has not stated that the plaintiff ever called upon defendants Nos. 4 and 5 before the institution of the suit to render true and proper accounts of the 'volume and sale proceeds' of the seized timber. It cannot, therefore, be held that despite demand by the plaintiff, the defendants Nos. 4 and 5 intentionally and unjustifiably failed to render accounts to the plaintiff. This issue is accordingly decided against the plaintiff.
Issue No. 7
32. It was contended by the learned Law Officer for the State that the timber was seized in July and November, 1982. Therefore, if the seizure was illegal/wrongful, the plaintiff could sue for compensation within one year of the date of seizure as provided under Article 80 of the Limitation Act, the plaintiff, however, instituted this suit on 16-8-1997 by which time his claim had become hopelessly time-barred.
33. Article 80 of the Schedule to the Limitation Act (hereafter referred to as the Act) reads as follows :
'Description of suit
Period of limitation
Timefrom which period begins to run
80. For com-pensation for wrongfulsei-zure of mov-able property under legal process.'
One year
The date of the seizure
34. It is clear on a bare perusal of the above Article that it will apply to a suit for compensation for wrongful seizure of movable property 'under legal process'. The expression 'under legal process' does not mean 'according to law' and any process taken according to law is not necessarily a 'legal process'. The expression 'legal process' by necessary implications means a process by a Court of law. Therefore, this Article will apply to seizure under a process issued by a Court and not to a seizure by police in exercise of its legal powers to seize an article during investigation or otherwise unless the seizure is in execution of a 'process issued by a Court of law'. Since the seizure of the timber in the case was not in execution of a 'legal process' issued by a Court of law, therefore, Article 80 will have no application to the present case.
35. In this case the timber/scants were taken in possession in a criminal case against the plaintiff on the ground that the trees had been felled by the plaintiff without permission of the competent authority. The Courts, however, found that the felling of the trees by the plaintiff was not in violation of law, therefore, the seizure was wrongful. Thereafter the case property was to be dealt with as per the final orders passed by the concerned Criminal Court about its disposal. Till such orders for disposal were passed and the defendants failed to return the property or value thereof, the plaintiff had no cause to sue for return of the case property or compensation for damages caused to him. He could sue only when the case property/proceeds thereof were ordered to be released to him but were not released. Therefore, this suit for the purpose of limitation is to be governed by Article 91(b) of the Schedule to the Act which reads as under :
'Description of suit
Periodof limitation
Timefrom which period begins to run
91. For com-pensation-
(a) xxx
(b) forwrong-fully taking or injuring or wrongfully detaining any other specific movablepro-perty.
xxxx
Three years
xxxxx
When thepro-perty is wrong-fully taken or injured, or when the detainer's possession be-comesunlawful.'
36. It is clear from the bare reading of the above Article that in a suit for compensation for (i) wrongful taking or (ii) injuring or (iii) wrongfully detaining specific movable property, the period of limitation will be governed by it. The cause to sue arose to the plaintiff in this case when seizure of the case property was found illegal and the property or value thereof was not returned/refunded to him pursuant to the release orders passed by the concerned Criminal Court, therefore, the above quoted article will apply to this suit. This view is fully supportable by the ratio in Jai Lal v. The Punjab State, AIR 1967 Delhi 113 and Mangalji Chotelal v. State of Rajasthan, AIR 1971 Raj 167.
37. In Jai Lal's case (supra) the plaintiff purchased some trees from the Nagar Panchayat and proceeded to cut and remove the trees. But the forest authorities, alleging that the Panchayat had no authority to fell the trees without their sanction and approval, prevented the plaintiff from cutting or removing the trees and confiscated them under Rule 10 framed under Section 76 of the Patiala Forest Act. Subsequently, on a writ petition filed by the Panchayat the High Court decided that the rule in question was outside the scope of Section 76 of the Forest Act and therefore ultra vires so far as third class forests were concerned. Then the plaintiff brought the suit against State of Punjab claiming the loss suffered by him because of the illegal acts of the forest authorities. The suit if governed by Article 2 of the Limitation Act, 1908 was barred and not so if Article 49 of the Act of 1908 applied. It was held that Article 2 was not applicable to the suit. Article 2 applied only if an act was alleged to have been done in pursuance of any enactment in force at the time of the doing the act. It was not enough for the defendants to show that they honestly believed that the enactment was in force. It must in fact be in force. Rules contrary or repugnant to the statues are void and of no effect. If the delegated authorities were permitted to frame rules repugnant to the Act, they would be trespassing into the legislative field. A rule repugnant to the Act would therefore be a still-born law and it cannot be said that it was in force at the time of commission or omission. In that situation it followed that the impugned act of the forest authorities was not in pursuance of any enactment in force and consequently Article 2 was not applicable and Article 49 (which corresponds to Article 91 of the Limitation Act, 1963) was held applicable to the suit.
38. In Mangalji Chotelal's case (AIR 1991 Raj 167) (supra), the officers of the Civil Supplies Department procured gram from the plaintiff as per the Procurement Order, 1953 at specified rates much below the prices obtaining in the free market at the relevant time. The plaintiff claimed that the Procurement Order was ultra vires of Article 31(2) of the Constitution of India and the procurement of foodgrains from the plaintiff being illegal, he was entitled to compensation for damages suffered by him. In the suit question arose as to whether the suit for the purposes of limitation was to be governed by Article 2 or 96 or 36 or 49 of the Limitation Act of 1908. After due analysis of the aforesaid Articles, the Rajasthan High Court held that in view of the finding that the foodgrains were wrongly taken from the plaintiff Article 49 (corresponding to Article 91 of the Limitation Act, 1963) was applicable to the suit for the purpose of limitation.
39. Similar view has been taken by Rajasthan High Court and J.C., Tripura respectively in Firm Siremal Dhingarmal v. State of Rajasthan, AIR 1966 Raj 220 and Hira Lal Jain v. Union of India, AIR 1968 Tripura 63.
40. In view of the above position in law, the suit is to be governed by Article 91(b) for the purpose of limitation which provides three years period of limitation to sue for compensation. The starting point of limitation under this Article will be from the time when the property was wrongfully taken or injured or when the possession of the defendant became illegal. In the case in hand, the possession of the defendants evidently became illegal when despite release order passed by the concerned Court they failed to release the case property or value thereof in its entirety to the plaintiff.
41. It is not in dispute that the trial Magistrate ordered confiscation of the seized timber in favour of the State. However, the Sessions Judge concerned reversed the orders of confiscation and ordered return of the case property to the rightful owner: The revisions and appeals preferred by the State against the release order passed by the Sessions Judge were dismissed and final outcome of the litigation between the parties regarding the confiscation or release of the timber in question ended in the final order of release of the timber in favour of the rightful owner. Thereafter the plaintiff preferred applications in the Court of the trial Magistrate for release of the timber/sale proceeds thereof on the ground that he was the rightful owner of the seized timber. His applications were allowed by the trial Magistrate vide Orders Ext. PW-9/W-1, Ext. PW-9/W-2 and Ext. PW-9/W-3. All these orders were passed on 16-8-1994. However, the defendants failed to return the case property/the claimed value thereof to the plaintiff. Therefore, this suit has been instituted on 16-1-1997, i.e. the last day of limitation available to the plaintiff. In these circumstances, the suit has apparently been instituted within three years of the day when the plaintiff was found entitled to the release of the timber/price thereof but the defendants failed to do so.
42. In view of the above discussion, it is held that the defendants have failed to prove that the suit is barred by limitation.
Issues Nos. 2 and 6
43. Since both these issues are interconnected, therefore, are taken up together for discussion and decision.
44. Vide para 16 of the plaint, it is case of the plaintiff that the seized timber was Samudha/Class 'A' quality, i.e. the best quality of timber and the price thereof as per the rates fixed and notified vide communication, dated 19-4-1988 works out to Rs. 10,00,489/-. Against this amount the plaintiff claims to have already received a sum of Rs. 4,32,233/- which is the net amount realised by auction of the timber by defendants Nos. 4 and 5. The defendants have not admitted this valuation. This is the minimum value of the timber as claimed in the notice Ext. PW-9/T served on the defendants by the plaintiff. However, except the plaintiff himself (PW-9), none has been produced to state about the value of the seized timber. Even PW-9 in his statement has nowhere stated as to what was the value of the seized timber. He has, however, stated that the seized timber was of class 'A', i.e. the best quality of the timber, and that by the acts and omissions of the defendants in auctioning the seized timber, he had sustained loss in the sum of Rs. 5,50,000/-because it was sold at the lesser rates. Out of the sale proceeds, he has admitted receipt of a sum of Rs. 4,32,000/- and odd. He has further stated that the details of losses which he had suffered, has been prepared by him vide Ext. PW-9/R and that the copy of the seizure memo of the timber is Ext. PW-9/V.
45. The statement of the plaintiff that the seized timber was Samudha is supported by Sant Ram (PW-10). It may be pointed out that a perusal of Ext. PW-9/V, the seizure memo, reveals that it is not mentioned therein as to what was the quality and condition of the timber at the time of seizure. Similarly, the details of losses Ext. PW-9/R prepared by the plaintiff does not indicate that the seized timber was Samudha. On the contrary, what emerges from it is that the seized timber included 101 round Balies and other Deodar mix, 49 Kail mix and Dimdimas. 38 Rai mix and Dimdimas which cannot be called Samudha/class 'A' timber because such timber consists of Kacha and thin portion of the timber tree. Further, this value has been worked out on the basis of the rates fixed by the H. P. State Forest Corporation for supply of timber to Small Scale Industrial Units vide a letter dated 19-4-1988. Primarily, it is not shown that these rates were applicable to or at par with the rates of timber meant for being sold at the auction where rates would be fluctuating. The timber had been seized much before 1988 and its value had not been worked out as per the rates which might be prevalent at the time of the seizure. There is yet another defect in this detail Ext. PW-9/R, i.e. it does not take into account the expenses which were likely to be incurred in transporting the timber from the spot to the places of auction and the expenses which would have been incurred on stacking the timber at the place of auction till it was auctioned. Thus, there is no cogent and reliable evidence on the record to prove that the seized timber was worth Rs. 10,00,489/- or the loss in value was Rs. 5.50 lacs.
46. Since there is no evidence to come to a conclusion that the value of the timber was more than the amount deposited and paid to the plaintiff, therefore, there is no question of assessing the alleged damages or the liability to pay such damages. It is in the statement of PW-11 produced by the plaintiff himself that a sum of Rs. 9,46,961/- had been refunded to the plaintiff on account of the sale proceeds and in j my view, this refund meets the claim of the plaintiff and he is not entitled to any further compensation.
47. In view of the above discussion, both these issues are held against the plaintiff. Issue No. 8
Issue No. 8
48. There is nothing on the record to substantiate the plea of the defendants that the plaintiff has no cause of action to sue them. The facts as averred in the plaint disclose a cause of action in favour of the plaintiff. This issue is, therefore, held against the defendants.
Issue No. 9
49. The plaintiff (PW-9) has stated that he served the defendants with notice a copy whereof is Ext. PW-9/T and the receipts regarding posting of the notices are Exts. PW-9/V, PW-9/V-1 to PW-9/V-5. There is no evidence to show that these notices were not received by the defendants nor they have anything to say about the validity of the notice. This issue is, therefore, decided against the defendants.
Issue No. 10
50. The defendants have not led any evidence to prove any act or omission on the part of the plaintiff which may constitute estoppel against him nor this issue was pressed at the time of arguments. Hence, this issue is held against the defendants.
Issue No. 11
51. There is no evidence to prove that this suit is barred by res judicata. This plea of the defendants is simply frivolous. This issue is accordingly held against the defendants.
Issue no. 12
52. The plaintiff has sued for damages in the sum of Rs. 14,64,111/- and the suit has been valued at the same amount for the purposes of Court-fees and jurisdiction. Thus, there is nothing wrong in the valuation of the suit. This issue is, therefore, decided against the defendants.
Issue No. 13
53. This issue is based on the objection taken by defendant Nos. 4 and 5 that the suit is liable to be dismissed under Order 7, Rule 11(d) of the Code of Civil Procedure. The issue regarding limitation has already been held in favour of the plaintiff. It has neither been clarified in the pleadings nor at the time of arguments as to under what other provision of law this suit is barred. The suit does not appear to be barred by any law, therefore, this issue is held against defendant Nos. 4 and 5.
Issue No. 14 Relief
54. In view of the findings given on issue Nos. 2 and 6 above, the suit of the plaintiff merits dismissal and is accordingly dismissed. However, in the facts and circumstances of the case, there is no order as to costs.