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Tung Nath Rai v. Zila Parishad Ghazipur And Others - SECOND APPEAL No. 2229 of 1975 [2007] RD-AH 12767 (24 July 2007)


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Court No. 27

Second Appeal No. 2229-1975

Shri Tung Nath Rai..........................................Plaintiff-Appellant


Zila Parishad and anothers......................Plaintiff-Respondents

Hon. Pankaj Mithal,J.

This  Second appeal by the plaintiff appellant is directed against the judgment, order and decree dated 31.7.1972 passed in Original Suit No. 12/1972  Sri Tung Nath Vs. Zila Parishad and another and the judgment and order of the lower Appellate court dated 18.9.1975 dismissing his Civil Appeal No. 21/1972 whereby the suit of the plaintiff-appellant was dismissed.

The plaintiff appellant purchased right to ferry at Birpur Ghat for the period 1.10.1963 to 30.9.1964 in the auction held on 15.7.1963. The lease was executed on 19.2.1964 and the plaintiff appellant No. 1 was put in possession of the ferry on 1.10.1964. The auction was for a sum of Rs. 32,500/-. The plaintiff No. 1 appellant deposited Rs. 20,397/- but declined to deposit the balance of Rs. 12,103/-. Plaintiff No. 2 now respondent No. 3 was surety. Therefore Zila Parishad pressed for recovery of the aforesaid balance amount against both of them.

Faced with the above recovery plaintiff No. 1 appellant and the plaintiff No. 2 surety together instituted an original suit No. 12 of 1965 against the Zila Parishad and the State of U.P., for restraining them from  realising the aforesaid balance amount for the reason that the defendant respondent No. 1 did not put the plaintiff appellant in peaceful possession over the ferry and did not stop running of the private ferry within the limits of the above public ferry of Birpur Ghat. Therefore, the plaintiff appellant is entitle to rateable deduction on the total amount of the contract sum.

The suit was dismissed by the Trial Court on a technical ground with cost upon the parties. However in appeal the matter was considered on merits and the appeal was dismissed holding that the plaintiff appellant has operated the ferry for the entire period and therefore he is liable to pay the complete amount of the contract.

This second appeal was preferred on 19.12.1975 and was admitted by  order dated 6.1.1976. Since the appeal was preferred and admitted before the commencement of CPC Amendment Act 1976 which was enforced with effect from 1.2.1977, by virtue of Section 97 (2) (m) of the said Amendment Act the amendment providing for formulating a substantial question of law before deciding the second appeal is not applicable.

It appears that the appeal was admitted basically on the question of law as to whether the plaintiff appellant is entitle to any rateable reduction in the payment of contract amount on account of operation of the private ferry by one Ram Kishan Singh.

I have heard Sri A.N. Bhargawa, learned counsel appearing for the plaintiff appellant and  Sri S.K. Verma Senior Advocate appeared on behalf of respondent No. 1 Zila Parishad, Ghazipur.

Northern India Ferries, Act 1878 provides for the establishment of public ferries and that its superintendence vests in the District Magistrate or with such officer as the state Government may appoint. It further provides that the management of such Ferries shall be vested in Municipality District Council or Local Board as directed by the State Government. Section 8 of the Act  provides for the manner of settlement of  public ferries with the approval of the Commissioner of the Division or by public auction. Section 9 of the Act empowers the Magistrate to recover all arrears on account of lease from the lessee or his surety. Under Section 11 of the Act the lessee has a right to surrender his lease after giving one month notice in writing to the State Government. Section 13 of the Act prohibits private persons from operating private ferry within a distance of two miles from the limits of the public ferry. Section 26 of the Act provides for the penalty for maintaining a private ferry in violation of Section 13 and section 31 of the Act authorizes the Magistrate to assess the damage done by operation of such private ferry to the lessee of public ferry and to direct for the payment of penalty and damages so determined to the lease of the public ferry.

The controversy at hand is to be determined in the light of the aforesaid provisions of the act. Admittedly, the plaintiff appellant was given right to operate public ferry at Birpur Ghat for one year and he was given possession on 1.10.1963. He had operated the ferry for the complete term, though he had made a complaint about the operation of the private ferry by one Ram Kishan Singh within the limits of the public ferry. It is also admitted that the plaintiff appellant on account of operation of the aforesaid private ferry had not lodged any complaint under Section 13 of the Act with the Magistrate nor has volunteered to surrender his lease as provided under Section 11 of the Act. Thus he continuously operated ferry without taking recourse to the remedies provided under the act. Thus not even any damage,  if any suffered by him came to be assessed by the Magistrate as provided under Section 31 of the Act.

In the absence of any such surrender of lease by the plaintiff appellant, complaint against operator of the private ferry and the assessment of damages coupled with the fact that the plaintiff appellant operated the public ferry for the entire term without any let or hindrance by the defendant respondents No. 1 and 2, the courts below committed no error of law in dismissing his suit and refusing to injunct the defendant respondent Nos. 1 and 2 from realising the balance amount.

In view of the scheme of the Act there was no legal obligation on the part of the defendant respondents No. 1 and 2 to stop the private ferry if any from operating and as such there was no breach of any terms and condition of the lease on their part. It has not been proved that the said private ferry was operating either in collusion or with the connivance of the defendant respondents. Moreover, the quantum of damages not having been assessed by the authority competent under the Act, it was beyond the jurisdiction of the  civil court to grant any remission of any amount from total contract amount. Section 43 of the Act stipulates that no suit for ascertaining the amount for compensation payable under this act shall be cognizable by the civil court. Accordingly, when the civil court cannot assess the damages or compensation payable, no question of remission of any amount from the contract amount arises.

In the last Sri Bhargawa has urged that the suit of the plaintiff appellant was dismissed on technical a ground and therefore the trial court had made the cost easy. However  the Appellate Court without any reasoning has awarded cost of both the suit and the appeal to be payable by the plaintiff-appellant.  To the above extent Sri Bhargawa appears to be correct. There was no justifiable reason to impose cost of suit on the  plaintiff appellant  when the trial court had dismissed the suit on a  technical ground. Thus the order of the Appellate Court to the extent it directs the plaintiff appellant to pay the costs of the appeal and of the lower court is set aside.

The appeal lacks merit and is dismissed with no order as to costs.  




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