Decided on March 27,2012

STATE OF U P Respondents


- (1.) Heard Mr. Anurag Bisaria, Advocate for the defendants/appellants and Mr. B.K. Gupta, Additional Advocate General for the plaintiff-respondent/State. This second appeal has been admitted by the learned Single Judge of this Court on the following question of law, which reads as under:- 1. Whether the first appellate court has erred in law in decreeing the suit as against the appellants/defendants who have allegedly not inherited the property of defendant No. 1 Madan Lal (Since deceased), the employee of the plaintiff/respondent who is said to have embezzled the amount.
(2.) All the same, when the learned counsel for the defendants/appellants as well as learned counsel for the plaintiff/respondent were being heard, it transpired that another substantial question of law also presently arises for consideration by this Court. Before we come to this aspect, brief facts of the case must be stated. These are as under:
(3.) In the erstwhile Irrigation Department of the State of Uttar Pradesh one Sri Madan Lal (defendant No. 1) was the Class IV employee and was working as Store Keeper at Belwala and at another place at Cheella in district Pauri Garhwal. He worked as such between 14.12.1975 to 10.8.1981. After his transfer from the said place as Store Keeper, it came to light that there was a shortage of many of the articles in the Store Room such as Cement, Iron Timber etc. Consequently, a departmental inquiry was constituted against Sri Madan Lal. After inquiry, a First Information Report was lodged against Madan Lal (defendant No. 1), which was registered as Case Crime No. 35/83 under Section 409 IPC, which ultimately resulted in filing of a charge sheet in which Sri Madan Lal to face criminal trial under Section 409 of the Indian Penal Code. Meanwhile it was revealed that Mr. Madan Lal had purchased a property in the year 1978 at Jwalapur in Haridwar. According to the plaintiff-respondent, this property was purchased out of the "funds", which he had "misappropriated" as a Store Keeper in the Irrigation Department as a government employee! Consequently, a suit was filed for recovery of Rs. 1,99,122.18/- against Sri Madan Lal (Defendant No. 1). Apart from Sri Madan Lal, who was defendant No. 1, his wife Smt. Krishan Devi and two sons Mr. Satish Kumar and Mr. Pradeep Kumar were also made party as defendant Nos. 2, 3 and 4 respectively. This was done because the property had been purchased in the name of his wife and sons. The entire case of the plaintiff was that the money misappropriated was around of Rs. 1,98,000/-, and out of this amount the said property was purchased in the name of his wife and two sons and hence the suit for recovery was filed with the following substantial questions of law which was formulated by the trial court, which read as under:- 1. Whether during the tenure of defendant No. 1 between 14.12.1975 to 18.8.1981 at Belwala and Cheela the goods of the plaintiff were in his custody and there was any shortage, if yes, whether defendant is liable to pay its cost? 2. Whether defendant No. 1 on 22.3.1981 admitted the said shortage, if yes, its effect? 3. Whether suit was instituted by wrong plaintiff, if not so, its effect? 4. Whether the property purchased by defendant No. 1 by Bainami in the name of defendant No. 2 to 4 can be auctioned? 5. Whether the suit is bad for mis-joinder of unnecessary parties? 6. Whether the court has jurisdiction to try the suit? 7. Whether the suit is barred by limitation? 8. Whether the defendant No. 1 is not liable to compensate the shortage? 9. Whether the suit is bad for mis-joinder of parties? 10. Relief? If any.;

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