Iqbal Mahmadbhai Mansuri ­ Defendants

1. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant herein­original plaintiff ­Gujarat State Civil Supply Board to quash and set aside the impugned judgment and order passed by the learned Appellate Court ­learned Additional District Judge, Patan dated 8.9.2006 passed in Regular Civil Appeal No.31 of 2004 by which the learned Appellate Court has allowed the said appeal preferred by the respondent herein ­original defendant and has quashed and set aside the judgment and decree passed by the learned Civil Judge (J.D.), Radhanpur dated 4.10.2004 passed in Regular Civil Suit No. 71 of 1993. 2.0 That the appellant herein­original plaintiff instituted Regular Civil Suit No. 71 of 1993 against the respondent herein­ original defendant in the Court of learned Civil Judge (J.D.), Radhanpur for recovery of Rs.44,307.25 towards loss / damages caused to the plaintiff Corporation because of the negligence and / or act or omission on the part of the defendant. It is the case of the appellant­original plaintiff that over and over order passed by the Collector, Banaskantha at Palanpur dated 23.7.1990, the plaintiff produced number of evidences to prove the loss/ damages suffered by the appellant­original plaintiff. That on appreciation of evidence, the learned trial Court decreed the suit by judgment and decree dated 4.10.2004. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Civil Judge (J.D.), Radhanpur dated 4.10.2004 passed in Regular Civil Suit No.71 of 1993 the respondent herein ­original defendant preferred Regular Civil Appeal No. 3 1of 2004 before the learned District Court, Patan an the learned Additional District Judg, Patan by impugned judgment and order dated 8.9.2006 has allowed the said appeal and has quashed and set aside the judgment and decree passed by the learned trial Court on the ground that the plaintiff has failed to prove the order passed by the Collector, Banaskantha dated 23.7.1990 and that before initiating any proceedings to recover an amount, no departmental inquiry has been initiated by the Disciplinary Authority. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court, the appellant herein­original plaintiff has preferred present Second Appeal under Section 100 of the Code of Civil Procedure.

3.0 While admitting the present Second Appeal, the learned Single Judge has framed the following substantial question of law.

(1).Whether the lower appellate court has erred in not considering the evidence on record and in not deciding the appeal on merits. (2).Whether the lower appellate court has erred in holding that the suit for recovery against the defendant ought to have been preceded by disciplinary proceeding fastening the civil liability upon the defendant.

4.0 Having heard Shri Varun Patel, learned advocate for the appellant and Shri Vyas, learned advocate for the respondent herein­original defendant and considering the impugned judgment and order passed by the learned Appellate Court, it appears that the learned Appellate Court has not considered all the materials and / or evidences on record, which was produced before the learned trial Court. It is the specific case on behalf of the appellant ­original plaintiff that over and above the order passed by the Collector, Banaskantha at Palanpur, the plaintiff did produce and / or led the evidence to prove the loss/ damages suffered by the Corporation due to the negligence and / or act or omission on the part of the defendant, still the learned Appellate Court has not considered anything on merits. From the impugned order passed by the learned Appellate Court, the learned advocate for the appellant seems to be justified in making the aforesaid grievance. Considering the impugned judgment and order passed by the learned Appellate Court it appears that the learned Appellate Court has not considered in detail the evidence oral and / or documentary led by the respective parties more particularly, the appellant herein­ original plaintiff. The learned Appellate Court has held that before initiating the proceedings for recovery of the amount, a disciplinary inquiry and / or inquiry is required to be held cannot be sustained. If the suit is filed for recovery of the damage and / or loss caused due to employee, same can be proved by leading evidence in the suit for which the inquiry and/ or departmental inquiry and / or any other inquiry is not required to be conducted. Under the circumstance, finding given by the learned Appellate Court to the aforesaid extent deserves to be quashed and set aside.

5.0 In view of the above and for the reasons stated above, appeal succeeds in part. The impugned judgment and order passed by the learned Appellate Court is hereby quashed and set aside inclusive of the finding given by learned Appellate Court that before initiating any proceedings for recovery of the amount an inquiry was required to be initiated are hereby quashed and set aside. The matter is remanded to the learned Appellate Court to decide the appeal afresh in accordance with law and on merits considering the evidence let by the parties before the learned trial Court and the learned Appellate Court to consider whether the appellant ­original plaintiff has succeeded in proving the loss / damages by leading the evidence or not. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the passing of the present order. Present Second Appeal is allowed to the aforesaid extent. Registry is directed to send the writ of this order to the learned Appellate Court immediately.

“kaushik”

sd/­ ( M. R. Shah, J. )