IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 594 of 1996()
1. NARAYNA BHAT
... Petitioner
Vs
1. GOWRI
... Respondent
For Petitioner :SRI.D.KRISHANA PRASAD,JOJI VARGHERSE,
For Respondent :SRI.M.C.SEN,PARVATHI A.MENON
The Hon'ble MR. Justice K.SURENDRA MOHAN
Dated :25/06/2009
O R D E R
K. SURENDRA MOHAN, J
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A.S. NO: 594 OF 1996
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Dated this the 25th June, 2009.
JUDGMENT
This is an appeal filed by the second defendant in a suit for
recovery of damages. The suit was filed seeking to recover
damages for loss caused to the plaintiff by the destruction of an
arecanut garden. As per judgment and decree dated 20.2.1996 in
O.S.76/1993, the Subordinate Judge, Kasaragod has decreed the
suit against the appellant/second defendant allowing the plaintiff
to recover an amount of Rs.30,000/- as damages. This appeal is
against the said judgment and decree.
2. According to the plaintiff, she obtained delivery of the
plaint ‘A’ schedule properties on 20.3.1993 in E.P.No: 15/1987 in
O.S. 38/1977. The suit O.S.38/77 had been filed by her for
partition and a preliminary decree was passed in the suit on
6.9.1978 finding that the plaintiff was entitled to 1/9 share in the
properties. Thereafter I.A.412/1978 was filed by the plaintiff for
passing a final decree. Accordingly on 27.1.1982 a final decree was
passed allotting the ‘A’ schedule property to her. The final decree
was challenged by the first defendant in A.S.291/1982 before this
Court. The matter had remained stayed as per the orders of this
A.S.594/1996 2
Court. Subsequently, after disposal of the appeal delivery of the
property was effected on 20.3.1993.
3. The plaintiff alleged that the defendants were in
possession of the ‘A’ schedule property along with their mother
Rugmani Amma who died on 23.1.1988. Thereafter, the
defendants continued in possession of the property. During the life
time of Rugmani Amma she had planted 70 arecanut seedlings in
the property, out of which only 45 arecanut plants are now
surviving. The plaintiff alleged that the defendants had neglected
the properties completely and as a result of such neglect, the
properties suffered extensive damage. At the time of passing of
the final decree, according to the plaintiff there were 200 yielding
arecanut palms fetching an yield of about 1 kandi of arecanuts
annually. Due to improper maintenance all the yielding arecanut
palms except 7 perished and the arecanut seedlings in the property
were also lost. The plaintiff estimated the loss at Rs.73,197.60.
She filed the suit praying for a decree for realisation of the said
amount from the defendants with future interest and costs.
4. The first defendant filed written statement contending that
he was not in possession of the suit properties. The second
defendant was in possession thereof along with their mother
A.S.594/1996 3
Rugmani Amma. After her death, the second defendant continued
in possession and management of the properties along with other
properties. He alleged that the present suit was filed in collusion
with the second defendant only to harass him. In 1983 and 1984,
several trees in the ‘A’ schedule properties and in the adjoining
gardens died due to scarcity of water. He contended that the
damages estimated was imaginary, the plaintiff has actually not
suffered any loss and therefore the first defendant was not liable to
pay any damages to her.
5. The second defendant filed written statement contending
that the first defendant had taken forcible possession of the
properties in O.S.38/1977 immediately after the preliminary decree
in 1978 and ever since, he alone was in possession of the entire
properties and, therefore, he was liable for the damages if any. It
was also pointed out that the plaintiff had not taken any
appropriate legal steps for the preservation and management of the
properties and, therefore, she was estopped from claiming
damages. Therefore, the second defendant prayed for the
dismissal of the suit.
6. The suit was tried by the court below on the above
pleadings, after framing five issues. The husband of the plaintiff
A.S.594/1996 4
was examined as P.W.1 and Exts.A1 and A2 documents were
marked on her side. The second defendant was examined as
D.W.1 and Exts.B1 to B3 documents were marked for the defence.
Ext.C1 is the commission report filed in the case.
7. The court below considered the evidence on record in the
light of the pleadings and the attendant circumstances and came to
the conclusion that the plaintiff has not been able to prove that she
had suffered any loss and therefore she was not entitled to realize
the amount claimed as damages by her. However, the Court found
that she could be granted nominal damages and fixed the amount
at Rs.30,000/-, to be realized from the second defendant with
future interest at the rate of 10% per annum with proportionate
costs. The said findings are challenged in the above appeal.
8. It is pointed out that the claim of the plaintiff in the
present suit could have been raised in the earlier partition suit,
O.S.38/77 and, not having done that, the present suit was barred
under Order II Rule 2 Civil Procedure Code. It is further pointed
out that the plaintiff had a duty to do some act in mitigation of the
loss or damage. She could have got a receiver appointed for the
property for preservation of the same, which she did not do. Since
she did not make any effort to safeguard the property, she is not
A.S.594/1996 5
entitled to claim any amount as damages, it is contended. Apart
from the above, it is pointed out that there is no evidence in the
present case to show the nature of the loss suffered by the plaintiff
and there is no quantification of the damage caused. Since mesne
profits has been decreed in the earlier suit, it is contended that the
plaintiff is not entitled to recover any further amount as damages.
Therefore the court below has gone wrong in awarding the amount
of Rs.30,000/- as damages, it is pointed out. It is also contended
that if at all the plaintiff has any claim it is only against the first
defendant and not against the second defendant.
9. On behalf of the plaintiff, it is submitted that the final
decree was passed in 1982. From then on the plaintiff was a co-
owner in respect of the properties. From 1982 to 1993, the
position of the defendants was that of trustees, it is contended.
The plaintiff came to know about the damage only when she got
delivery of the property. Therefore Order II Rule 2 CPC has no
application. The cause of action here is distinct and separate and
did not form part of the cause of action of the earlier suit. The fact
that a decree for mesne profits was passed in the earlier suit does
not preclude the plaintiff from pursuing a claim for damages for
the loss suffered by her. The loss was a direct result of the neglect
A.S.594/1996 6
on the part of defendants to carry out maintenance for preserving
the improvements. Therefore, the plaintiff prays for dismissal of
the appeal.
10. I have heard learned counsel appearing for the appellant
Shri. D. Krishna Prasad, Shri. B.S.Krishna Pillai for the first
respondent and learned Senior Counsel Shri. M.C.Sen for the
second respondent. I have been taken through the pleadings as
well as the evidence in detail.
11. The point that arises for consideration is :-
“Whether the court below is justified in
awarding an amount of Rs.30,000/- as damages to
the plaintiff?”
12. According to the plaintiff, Ext.A2 final decree passed in
the earlier suit between the parties show the presence of 200
arecanut trees in the property. However, it is alleged that they are
no longer there at present. Therefore, what the plaintiff has
claimed in the present suit is damages for loss suffered after the
passing of the final decree, Ext.A2. The said claim could not have
been raised in O.S.38/77, the earlier suit. The claim of the plaintiff
is also distinct and separate from the claim of mesne profits that
has been decreed in O.S.38/1977. Therefore, the suit is not hit by
A.S.594/1996 7
the bar under Order II Rule 2 CPC. Nor does the decree for mesne
profits granted in O.S.38/77 disentitle the plaintiff from pursuing
her claim for damages.
13. The question is whether the defendants or one of them,
could be made liable for the damages claimed by the plaintiff. The
court below has found that the second defendant was in possession
of the property for the reason that Ext.A1 delivery receipt shows
that the property was taken delivery of from him. According to
D.W.1 he signed the delivery receipt only because the first
defendant refused to sign the same. The Court also noticed that
the decree for mesne profits has been passed against Rugmini
Amma and second defendant who were found to be in possession
of the properties at the time of final decree. The Court finds that
there is no evidence to show that the first defendant has taken
forcible possession of the property after the preliminary decree or
the final decree. Therefore, it has been found that the first
defendant was not in possession of the property. This finding is
vehemently attacked by the counsel for the appellant who points
out that there is no claim for recovery of damages from the second
defendant in the plaint. According to him the question as to who
should be made liable to pay damages can arise only on it being
A.S.594/1996 8
shown that the plaintiff had suffered damages as claimed in the
plaint. In the present case, there is no evidence regarding the
extent of damages suffered by the plaintiff. After discussing the
evidence on the point, the court below has found as follows:-
“The plaintiff has not satisfied the court that she
had actually suffered the damages as estimated in the
plaint. Now the position is that there is no reliable
material where from it can be safely concluded that the
plaintiff has suffered a definite amount by way of
damages.”
14. In view of the above, the court below has proceeded to
award ‘nominal damages’. The court below has thereafter awarded
an amount of Rs.30,000/- which is absolutely without any basis.
Having found that the plaintiff has not satisfied the Court that she
has actually suffered any particular amount as loss, there is no
justification for awarding the amount of Rs.30,000/- as damages.
There is no material or evidence to show how the amount of
Rs.30,000/- was arrived at.
15. The plaintiff has not filed any appeal challenging the
quantum of damages awarded by the court below. The amount of
Rs.30,000/- is substantial, in comparison with the plaint claim and
cannot be characterised as nominal. The Court below erred in
awarding the said amount without any basis, after having found
A.S.594/1996 9
that the plaintiff had not succeeded in proving her claim.
Therefore, the appeal is allowed, the judgment and decree of the
Court below are set aside and O.S.76/1993 of the sub Court,
Kasaragode is dismissed. No costs.
K. SURENDRA MOHAN
Judge
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A.S.594/1996 10
K.SURENDRA MOHAN, J.
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A.S.NO:594 OF 1996
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JUDGMENT
Dated: 25th June, 2009.