JUDGMENT R.L.Khurana, J.: The prese a slU for the recovery of Rs. 5.34.649.26P as damages was c.iginally filcJ by one Sm\ Vijoti Devi wife of Shri Mangat Ram Chauhan, who died during the pendency of the present suit. Vide order dated 8.12.1994, Shri Raj Pal Chauhan, her son, came to be itnplcaded as plaintiff being the sole legal heir on the basis, of will. The said Raj Pal Chauhan hereinafter being referred to as the plaintiff. 2. The facts giving rise to the present case, briefly, may be stated thus. Land measuring 39 bighas 7 biswas comprising of khasra No. 223/2143/159, as per jamabandi for. the year 1981-82 of village kalemoo. Tehsil. Kotkhai, District Shimla, was owned and possessed by the plaintiff. This whole land was under an orchard. Out of this land an area measuring 4 bighas 16 biswas denoted by khasra No.223/214/159/1 came to be acquired for the purpose of construction of Nehri-Garog-Jauni-Gazta road. The work of construction of the road was undertaken by the defendant sometime in the year 1981. During the construction, widening, leveling and cutting of the said road during the period 1982 to 1987 damage was caused to the land of the plaintiff described as under S.No. Khasra No. Area 1. 223/214/159/271 3 bighas 4 biswas 2. 223/214/159/4/2/2 6 biswas 3. 223/214/159/1 8 bigha.-: 4 biswas 4. 223/214/159/9 2 biswas 3. According to the plaintiff (here were 130 apple plants of about 7 years of age, 25 plants of pears of about 6 years of age and 80 plants of almond of about 6 years of age in the land, detailed at serial Nos. 3 and 4 above. These plants were completely damaged. In addition to the said fruit plants, about 10 quintals of grass was also damaged. In order to remove the debris from this land, the plaintiff had to incur an expenditure of Rs. 20,000/-. The plaintiff claimed damages to the tune of Rs. 3,83,375/-, detailed below, in respect of this’ land :- (i) Cost of fruit plants Rs.3, 61,875.00 (ii) Cost of grass Rs. 1,500.00 (iii). Amount spent for removal of badris’s Rs. 20,000.00 4. In the land measuring 3 bighas 4 biswas, described at serial No. I above, there were 30 apple plants of about 7 years of age 15 almond plants of about 7 years of age, and 30 plants of pears of about 7 years of age. 1,500.00 (iii). Amount spent for removal of badris’s Rs. 20,000.00 4. In the land measuring 3 bighas 4 biswas, described at serial No. I above, there were 30 apple plants of about 7 years of age 15 almond plants of about 7 years of age, and 30 plants of pears of about 7 years of age. AM these fruit plants were completely damaged. Besides, whole of this and had slid down completely. The plaintiff, therefore, claimed damages of Rs. 1, 60,085/-and Rs. 32,000/-, respectively for the fruit trees and the land. 5. Further case of the plaintiff is that there were 5 apple plants of about 8 years of age, 3 almond plants of about 7 years of age and one plant of pear of about 7 years of age of the land described at serial No.2 above, which totally damaged. A sum of Rs. 14,557.50P. as damages, has been claimed therefore. 6. The plaintiff submitted two damage claim to the defendant in respect of the above said damage/loss suffered by him, respectively, on 6.5.19X6 and 24.10.1987. Since, the defendant failed to settle the claims preferred by the plaintiff, a civil writ petition, being Civil Writ Petition No.501 of 1987, was filed by the deceased plaintiff, inter alia, praying for a direction to the defendant to compensate her for the damage suffered by her during the course or construction of Nehri-Garog- Janui-Gazta road and also to pay interest on the amount of damages. The said writ petition was finally disposed of by a Division Bench of this court on 28.3.1988; vide order, copy of which is Ex. P-l. Following directions were issued:-. "(1) The damage case, which is stated to be under process as per para 16(iii) of the afliaavit dated December 24. 1987 filed by the Superintending Engineer, 2nd Circle, HP PWD, Shim la. will be finalised and the payment, if any, due for the damage sustained by the petitioner is negatived, an intimation to that effect will be served upon her by, registered post within the same time-limit. 1987 filed by the Superintending Engineer, 2nd Circle, HP PWD, Shim la. will be finalised and the payment, if any, due for the damage sustained by the petitioner is negatived, an intimation to that effect will be served upon her by, registered post within the same time-limit. (2).The petitioner will be at liberty to accept such payment, if any,, subject to her rights and contentions and will also be at liberty to file a civil suit claiming damages in accordance with law; if such suit is filed within a period of four months "from the date of the payment or from the data of the receipt of the communication rejecting the damage claim, no plea of limitation, even if available, will be raised by the respondents. (3) The condition laid down in para 2 above applies also to the payment of Rs. 11368.24, received by the petitioner under the orders of the court dated December 30, 1987." 7. A sum of Rs. 11,368.24P as damages was received by the plaintiff on 1.2.1988 under protest and as part payment of his claim for damages. The remaining claim for damages preferred by the plaintiff was rejected by the defendant. The plaintiff was intimated about such rejection of the claim vide letter dated 24.6.1988, received on 30.6.1988 (Ex.P.2). 8. After the rejection of the claim, the plaintiff filed the present suit on 27.10.1988 for recover of Rs. 5,34,649.26P (after adjusting the amount of Rs.11,368.24 P received by him on 1.2.1988), as damages. Pendente lite and future interest on such amount at the rate of 12% per annum was further claimed along with costs of the suit. 9. The defendant, while resisting the suit admitted that in the course of construction of the road, during die period April 1987 to July 1987, some fruit plants belonging to the plaintiff in the lands detailed at serial Nos. 1 and 2 above" were damaged. It was pleaded that necessary damage was got assessed and necessary compensation amounting to Rs.11,368.24 P therefore stood paid to the plaintiff. It was further pleaded that no damage was caused either to the land or the plants located in the lands detailed at Serial Nos. 3 and 4 above. The damaged plants were duly handed over to the plaintiff and receipt obtained. Filing of the writ petition by the deceased and the directions issued therein vide Ex.P-1 were admitted. It was further pleaded that no damage was caused either to the land or the plants located in the lands detailed at Serial Nos. 3 and 4 above. The damaged plants were duly handed over to the plaintiff and receipt obtained. Filing of the writ petition by the deceased and the directions issued therein vide Ex.P-1 were admitted. Legal objections as to the valuation of the suit, main taxability of the suit, limitation, the suit being bad for non-joinder of necessary parties and being barred by principles of res-judicata were further raised. On the pleadings of the parties, following issues were framed on 3.9.1990:- Whether the suit has not been properly valued for the purposes of Court fee und jurisdiction? OPD I. Whether the suit is bad for non-joinder of necessary parties? OPD 3. Whether the suit is not maintainable for want of notice under Section XO CPC, as alleged ? OPD 4. Whether the suit. is time barred, as alleged ? OPD 5. Whether the suit is barred by principles of resjudicala ! OPD 6. Whether the damage to the immovable property of the plaintiff including fruit bearing and non-fruit bearing plants, has been caused by the acts of the defendants, as alleged in the plaint? OPP 7. In case, issue No.6 is decided in affirmative, to what amount of damages the plaintiff is entitled to with respect to his immovable property including fruit bearing and non-fruit bearing plants standing thereon? OPP. 8. To what rate of interest and from whom is the plaintiff to recover? OPP 9. Relief. 10. Issues No. 1 to 3 were treated as preliminary issues. All these three issues, on having been not pressed by the defendant, were decided against the defendant and in favour of the plaintiff on 4.4.1996. 11. Both the parties have led oral as well as documentary evidence in support of their respective claims. 12. I have heard the learned counsel for the parties and have also gone through the record of the case. My findings on the remaining Issue No.4 to 8 arc as under. . . Issue No.4 13. The learned Assistant Advocate General has contended that the present suit, on the face of it, is hopelessly barred by time since the same has been filed after the expiry of the prescribed period of three years after the right to sue had accrued to the plaintiff. 14. . . Issue No.4 13. The learned Assistant Advocate General has contended that the present suit, on the face of it, is hopelessly barred by time since the same has been filed after the expiry of the prescribed period of three years after the right to sue had accrued to the plaintiff. 14. The objection as to limitation is not available to the defendant. Admittedly, the deceased plaintiff Smt. Vijoti Devi and filed a writ petition, being Civil Writ Petition No.501 of 1987, prior to the filing of the present suit. The said writ petition was disposed of on 28.3.1988, vide order, copy of which is Ex.P-1. The directions issued therein have already been quoted above, while setting out the facts of the case. For the purpose of convenience, direction No.2, in so far as it is relevant for the purpose of present issue may be quoted again "The petitioner will be at a liberty to accept such payment, if any, subject to her rights and contentions and will also be at liberty to fib a civil suit claimant damages in accordance with law : if such a suit is Filed within a period of four months from the date of payment or from the date of the receipt of the communication rejecting the claim, no pica of limitation, even if available, will be raised by the respondents," (Emphasis supplied) 15. The claims of the plaintiff were finally rejected by the defendant and the necessary communication in this regard dated 24.6.1988 (E.\.P.2) was sent to the plaintiff and received by him on 30.6.1988. Therefore in terms of the direction given in the writ petition, quoted above, a suit for damages could be filed by the plaintiff by 29.1 O.I 988. The present suit was filed on 27.10.1988 before the expiry of the period of four months fixed in the above direction. 16. The suit having been filed within the period fixed by the Court vide Ex.P. l, the defendant is debarred from raising the plea of limitation. It is. Therefore, held that the Suit is within time, The issue is, accordingly, decided against the defendant. No.5 17. 16. The suit having been filed within the period fixed by the Court vide Ex.P. l, the defendant is debarred from raising the plea of limitation. It is. Therefore, held that the Suit is within time, The issue is, accordingly, decided against the defendant. No.5 17. The defendant has averred in para 6 of the written statement on merits in the following terms "Admitted to the extent that petitioner had filed a CWP in Honble High Court of H.P, as CWP 501/87 and the same-was disposed off by this Honble Court vide its order dated the 28th March, 1988. The suit of plaintiff is barred by principles of res-judicata.” 18. A perusal of direction No.2 given in the order dated 28.3; 1988 (Ex.P. 1) passed in the writ petition, which stands quoted while discussing issue No.4 above, shows that the plaintiff was given the liberty to file a civil suit claiming damages in accordance withdraw. Besides, the writ petition was never decided on merits. 19. Therefore, in view of the specific liberty to file a suit for damages having been given to the plaintiff and the fact that the writ petition was never decided on merits, the present suit cannot be held to be barred by principles of res-judicata. The issue is decided against the defendant. Issues No. 6 and 7. . 20. Both these issues being inter-linked and inter-connected arc being taken up together for decision. 21. The defendant in its written statement has specifically admitted that fruit plants belonging to the plaintiff in the land described at serial No. i and 2 above, that is, khasra No.23/214/159/5/gT/l (measuring 3 bighas 4 biswas) khasra No.223/214/159/4/2/2 (measuring 6 biswas) were damaged during the course of construction of the road. 22. The defendant has, however, denied the damage to (he land measuring 3 bighas 4 biswas as at serial No. 1 above, as also the damage to the plants located in the land described at serial Nos.3 and 4 above, that is. khasra No. 223/214/159/1 (measuring 8 bighas 4 biswas) and khasra No.223/214/159/3 (measuring 2 biswas). 23. 22. The defendant has, however, denied the damage to (he land measuring 3 bighas 4 biswas as at serial No. 1 above, as also the damage to the plants located in the land described at serial Nos.3 and 4 above, that is. khasra No. 223/214/159/1 (measuring 8 bighas 4 biswas) and khasra No.223/214/159/3 (measuring 2 biswas). 23. In so far as the damage to the land measuring 3 bighas 4 biswas is concerned, no evidence has been led by the plaintiff to show that whole of his land bad slid away during the course of construction of the road by the defendant, as alleged by the him in para 3 of the plaint. So much so that even the plaintiff himself while appearing as PW1 is silent on this aspect. Therefore, I have no hesitation in holding that no damage was caused to the land measuring 3 bighas 4 biswas belonging to the plaintiff and he is not entitled to any compensation there for. 24. Ext. PW6/A is the copy of the damage claim in respect of the fruit plants located in the land described at serial Nos. 3 and 4 above, that is, khasra Nos. 223/214/159/1 and 223/214/159/3 (total measuring 8 bighas 6 biswas). This claim was prepared by Field kanungo on 3.6.19X8 stating that apple, pears, and almond plants were damaged during construction of road. It contains an endorsement dated 5.5.1986 in the hand and under the signature of Tehsildar, kotkhai. in the following terms :- "I endorse the report of Patwari and Kanungo. The assessment of apple and oilier fruit plants may please begot done from the Horticulture Deptt. Hence forwarded to the S.D.O., PWD, Kotkhai for n/a." 25. Ex.PW 6/A was proved in evidence by summoning the original (hereof from the records of the PWD office at Kotkhai. It may be stated that though at the time of admission/denial of documents by the parties, before the framing of the issues, the defendant had denied Ex.PW 6/1, a copy thereof was placed on the record by the defendant itself under Order 13 rule 1, Code of Civil Procedure, and such copy on having been put to the plaintiff under rule ?-A of Order 12, Code of Civil, Procedure, was admitted by him. Therefore, Ex.PW 6/A will be deemed to have been admitted by the defendant. 26. Therefore, Ex.PW 6/A will be deemed to have been admitted by the defendant. 26. PW 5 Parkash Chand,a Junior Engineer of PWD Kotkhai had brought the requisite record. He has admitted that the assessment of damaged plants as per damage report Ex. PW 6/A was got done from the Horticulture Officer, Kokhai and that no amount as damages was paid with respect to the damage claim Ex. PW 6/A. 27. No explanation is forthcoming as to why die matter with regard to assessment of damage to die pints in die land described in Ex. PW 6/A was referred to the Horticulture Office, if no damage was caused during die construction of the road. The mere fact that die damage was got assessed by the defendant, goes to show that plants in the land detailed at serial Nos. 3 and 4 above and depicted in Ex. PW 6/A were damaged during die course of construction of the road by the defendant. 28. Next comes the question as to what amount of damage is the plaintiff entitled? 29. Admittedly, in respect of damage to die plants in die land detailed at serial Nos. (1) and (2) above, was assessed at Rs. 11368.24 paise. This amount stands paid by die defendant and received by die plaintiff under protest on 1.2.1988 vide receipt Ex. DWl/B. PW-5/B and PW 5/C are die copies of assessments made by PW 5 Manage Ram. 30. On the matter having been referred to him, PW 5 had also assessed the damage to the plants in the land detailed at serial Nos. (3) and (4) above. Such damage vides Ext. PWS/A was assessed at Rs. 1.29.587.50P. 31. It has come in die evidence of PW 5 diat die assessment of damage was done on the basis of Harbans formula. This formula is contained in a publication by S. Harbans Singh, formerly Director of Horticulture, Himachal Pradesh dealing with basic principles and methods of evaluation of fruit trees. This publication was published in die year 1966. . . 32. It deserves to be noticed that this Harbans Singh formula stands duly approved by the Directors of Agriculture, Punjab and Himachal Pradesh for the purpose of assessment of market value of the fruit trees. | Sec: Ramji Singh v. The Union Territory, Chandigarh (1983 Rcv.L.R. 451)1. 33. This publication was published in die year 1966. . . 32. It deserves to be noticed that this Harbans Singh formula stands duly approved by the Directors of Agriculture, Punjab and Himachal Pradesh for the purpose of assessment of market value of the fruit trees. | Sec: Ramji Singh v. The Union Territory, Chandigarh (1983 Rcv.L.R. 451)1. 33. The learned counsel for the plain "ff has contended that this formula was published and based on the market conditions as prevalent in the year 1966 and, as such, the plaintiff is entitled to claim a substantial increase in the price of the fruit trees during the period 1966 to 1986-87. He was pointed out that as per consumer price index in respect of Himachal Pradesh prepared by the Government of India. (Minister of Labour), Labour Bureau, Shimla, Ex. Pll, the price index in the year 1966 was 111 and the same had risen to 478 in the year 19*6 In other words, there has been an increases of 331%. Putting it roughly, there has been three fold increase’ in the price index. The learned counsel for the plaintiff has. therefore, contended that considering such three fold increase in the price index, the damage assessed vide Ext. PW 5/A to PW 5/C is also required to be increased accordingly. Calculating on such basis, the plaintiff would be entitled to damages as under:- (a) In respect of plants in die land detailed at serial Nos. (I) and (2) above, Rs. 11,368.24 paise x3 = Rs. 34,104.72 P. (b) In respect of plants in the land detailed at serial Nos. (3) and (4) above Rs. 1,29,587.50 paise x 3 = Rs. 3,88,762.50 P. Total Rs. 4,22,867.22 P. , 34. The learned Assistant Advocate General appearing for die defendant, has not been able to challenge the correctness of the price index as reflected in Ex.PI 1 and the increase in such price index during the period 1966 to 1986 from 111 to 478. that is, an increase of 331%. In fact PW 2, Supervising Officer, Labour Bureau, Shimla, who proved Ext. PI 1 in evidence, was never cross-examined by the defendant in order to show that the price index indicated in Ex_Pll was not correct. that is, an increase of 331%. In fact PW 2, Supervising Officer, Labour Bureau, Shimla, who proved Ext. PI 1 in evidence, was never cross-examined by the defendant in order to show that the price index indicated in Ex_Pll was not correct. It was, however, contended that the price index reflected by Ex.Pl 1 could not be taken not of the assessing and determining the increase in the price during the period 1966 to 1986 since it is difficult to determine die increase during die period with precision. 35. In Ranjit Singh v. The Union Territory, Chandigarh (supra), the High Court of Punjab and Haryarna while determining the market value of the fruit trees under die provisions of Land Acquisition Act. 1894 by placing reliance on the whole sale price index published by Economic Advisor. Ministry of Industry and Civil Supplies, Government of India, allowed die increase in the price of fruit trees for die period 1966 to 1975 over die assessment of market value made on die basis of Harbans Singh formula. 36. Similar increase was allowed by die High Court of Punjab and Haryana in Gokal Chand alias Gokal Singh and another v. State of Punjab (1989(3) LACC 487). 37. Relying upon die ratio laid down by die High Court of Punjab and Haryana in die above referred to two case, I am of die opinion that die plaintiff is entitled to three-fold increase in the amount of damages as assessed vide Ex. PW 5/A to PW 5/C. The plaintiff is, accordingly, held entitled to damages to die tune of Rs. 4, 22,867.22 P. A sum of Rs. 11,368.24 P. stands received by the plaintiff. After deducting, this amount, the plaintiff is entitled to a sum of Rs. 4,11,498.P (rounded off to Rs. 4.11,499/-) as damages from the defendant. 38. Both the issues are therefore, decided in favour of the plaintiff and against the defendant. Issue No.9 39. The plaintiff has claimed pendente lite and future interest on the amount of damages at the Rate of 12% per annum. Section 34( I), Code of Civil Procedure. Provides:-"34. 4,11,498.P (rounded off to Rs. 4.11,499/-) as damages from the defendant. 38. Both the issues are therefore, decided in favour of the plaintiff and against the defendant. Issue No.9 39. The plaintiff has claimed pendente lite and future interest on the amount of damages at the Rate of 12% per annum. Section 34( I), Code of Civil Procedure. Provides:-"34. interest.(l) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6 per cent, per annum, as the court deems reasonable on such principal sum, from the date of the decree to the date of payment, or to such earlier date as the court thinks fit: 40. Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed 6 per cent per annum, but shall not exceed the contractual rate of interest or where there is no contractual rote, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions. Explanation I. In this sub-section nationalised bank means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970). . Explanation II For the purposes of this section, transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability." 41. Admittedly, the liability in the present case has not arisen out of a commercial transaction; 42. The plaintiff has been deprived of the benefit of the amount by" the defendant for no fault of his. He was compelled to approach the court firstly by .way of a writ petition and thereafter by way of the present suit. Therefore, he is entitled to be compensated by way of interest. On the facts and in the j circumstances of the case, the plaintiff is held entitled to interest, pendenle lite as well as future, at the rate of 6% per annum from the defendant. Therefore, he is entitled to be compensated by way of interest. On the facts and in the j circumstances of the case, the plaintiff is held entitled to interest, pendenle lite as well as future, at the rate of 6% per annum from the defendant. The issue is "; accordingly decided in favour of the plaintiff. Relief, ,- 43. As a result of my finding on issues 4 to 8 above, the suit of the plaintiff is decreed and a decree for a sum of Rs. 4, 11,499A with costs is passed in favour of the plaintiff and against the defendant. The plaintiff shall be further entitled to pendente lite and future interest at the rate of 6% per Annum on the above said amount from the date of suit, that is, 27.10.1988 till the data of payment of the amount. Decree sheet be prepared accordingly. Appeal allowed