Decided on September 06,1993

Pem Gurmic Lama Appellant
Damber Singh Subbas And Others Respondents


R.Dayal, J. - (1.) This appeal directed against the judgment and decree dated 20-6-1990 of Shri P.W.Pulger, Civil Judge North and East Sikkim, against the dismissal of the suit brought by the plaintiff-appellant was pending in the Court of the Additional District Judge Sikkim and was subsequently withdrawn by this Court for hearing and disposal.
(2.) The Civil Suit giving rise to this appeal was instituted in the Court of the Civil Judge, East and North, by the plaintiff-appellant with the allegations that he is the absolute owner of plot no.241 from which he harvested cardamom and kept the same ready for sale during September 1987 but the defendant-respondents 1 and 2 who were the Head Constable and Constable respectively of Makha outpost. East Sikkim, and defendant-respondents nos. 3 and 4 who are inimical to the plaintiff-appellant came to the house of the plaintiff and forcibly took away two bags of cardamom, each weighing 50 kgs without any valid reason and without giving any proper receipt except one alleged seizure list, which he was made to sign. It was further pleaded that there was no nexus between the cardamom of the plaintiff and civil suit No. 17 of 1986 (of the Court of the Civil Judge East and North).The plaintiff claimed Rs.4,125/- as the price of the cardamom, Rs.2,000/- as damages and Rs.430/- as interest at the rate of 13% per annum on the principal amount of Rs.4,125/-. Thus a decree for a total amount of Rs.6,555/- with pendente lite and future interest was claimed.
(3.) The case proceeded ex parte against the defendants. After recording the evidence produced by the plaintiff-appellant, the suit was dismissed by the impugned judgment dated 20-6-90. The judgment of the Trial Court is extremely unsatisfactory and shows that the Civil Judge dealt with the case in an absolutely arbitrary manner and in total disregard of even the basics of civil law. He travelled beyond the record of the suit and relied upon the records of criminal case no. 72 of 1987. It is fundamental that if any documents of any other case have to be relied upon in any civil suit, the copies of such documents must be on the record of the civil suit and must be exhibited as per the law of evidence. He also referred to the seizure list without the seizure list being on record. He said in his judgment "the fact that the seizure list was given to the plaintiff shows that seizure was made during the enquiry of the dispute of the plaintiff with his kutiadar who has not been made party in the instant suit and who also should gel chance to say whether the cardamom was seized from plot no.241". This observation is based on imagination rather than on evidence, as no seizue list was exhibited to warrant the inference drawn by him. Further, the learned Civil Judge said : "Even assuming that the cardamom was seized from the plot no.241 wrongly or rightly by the defendant no. 1 he has given seizure list on the production of which the plaintiff can get his cardamom back." This remark was also uncalled for, being not based on evidence, particularly in view of the statement of the plaintiff that cardamom had already been disposed of by defendant no.1. He further said that on a "careful consideration of evidence, records of the criminal case it is clear that the seizure was made in the course of equiry by the defendant no.1 as a public servant and the issuance of seizure list shows his bona fide" and that ; plaintiff can approach the court of the District Magistrate for the return of seized cardamom and that the "suit for damages against an ad of a public servant done in discharge of official duty was not proper." The observations that the seizure was done in course of enquiry by defendant no.1 as a public servant, that the issuance of seizure list showed bona fides on the part of defendant no.2, that the plaintiff could approach the Court of the District Magistrate for the seized cardamom and that the seizure was done in discharge of official duly were not at all warranted from the records of the case.;

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