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2004 DIGILAW 136 (HP)

S. J. v. N. LTD. VS ROOP SINGH NEGI

2004-06-29

R.L.KHURANA

body2004
JUDGMENT R.L. Khurana, J.—The present appeal has been directed by the defendants against the judgment and decree dated 12.9.2003 of the learned District Judge, Kinnaur at Rampur whereby a decree for a sum of Rs. 5,62,700 as damages was passed in favour of the respondent No. 1/plaintiff and against the defendants /appellants in the following terms :— "In view of my findings on the above issues, the suit filed by the plaintiff is decreed for the recovery of Rs. 5,62,700/- against defendants No.1 and 2 jointly and severally. Suit against defendant No.3 is dismissed. The plaintiff shall also be entitled for the costs of the suit. Defendants No. 1 and 2 shall be legally entitled to adjust the amount of Rs. 22,500/- already paid to the plaintiff as damage from decretal amount. Defendants No.1 and 2 shall also be legally entitled to take the entire construction material lying in the house of the plaintiff in dispute because RW. 3 Sh. Sushil Sharma has not deducted the costs of the entire construction material lying in the house when he submitted the damage assessment report Ext. PW 3/A placed on record. The plaintiff shall also be entitled to interest on the decretal amount at the rate of 6% per annum from the date of institution of suit till its realisation. Decree sheet be prepared accordingly and file, after due completion, be consigned to record room.” 2. Briefly stated, the facts set out in the plaint are these. The plaintiff owns a single storeyed house consisting of five rooms in village Nigulasari, Tehsil Nichar, District Kinnaur. This house is located in the land measuring 0-01-35 Hects. comprising of khasra No. 369/368. 3. Defendants are executing the work of Nathpa Jhakri Power Project in the area since 1987-88 for which purpose they have acquired immovable properties of various persons. For the purpose of the project the defendants have constructed an udnerground tunnel of about 27.5. km. in length from Nathpa to Jhakri. In addition they have also constructed a number of adits at different points. Heavy blasting was carried out by the defendants for the purpose of excavation of tunnel and construction of adits. Villages Baroh and Nigulsari are located just above the tunnel and adits. It is pleaded that due to heavy underground blasting for the excavation of tunnel, the building of the plaintiff has been substantially damaged. Heavy blasting was carried out by the defendants for the purpose of excavation of tunnel and construction of adits. Villages Baroh and Nigulsari are located just above the tunnel and adits. It is pleaded that due to heavy underground blasting for the excavation of tunnel, the building of the plaintiff has been substantially damaged. Major cracks have appeared in the building and the same has been rendered unfit and unsafe for dwelling. The plaintiff was thus forced to vacate the same. 4. It is further pleaded that certain expert officials of the defendants has visited the spot to assess the damage caused to the building of the plaintiff. The damage was assessed by them at Rs. 22,500/- which amount was paid to and received by the plaintiff under protest. The plaintiff, thereafter, got the damage assessed by a Civil Engineer. Such engineer having visited the spot on 28.11.2000 assessed the damage at Rs. 5,62,700/-. On the basis of such assessment the plaintiff has been repeatedly approaching the defendants for the assessment of his claim as to damages, but with no result. Hence a suit was filed for the recovery of Rs. 6,10,700/- towards damages of Rs. 5,62,700/- and interest thereon at the rate of 12% per annum till the date of suit. 5. The appellants/defendants while resisting the suit did not deny the blasting operations having been carried out by them for the purpose of excavation of tunnel and/or construction of adits. It was pleaded that the work of excavation of tunnel in the zone where the building of the plaintiff is located stood completed before March, 1998. The damage to the property cannot be attributed solely to such blasting operations as per the report of the National Institute of Rock Mechanic, Banglore. The defendants admitted that a sum of Rs. 22,500/- was paid to the plaintiff. It was pleaded that such amount was paid to the plaintiff on humanitarian grounds for the minor damages caused to the property of the plaintiff, which amount was accepted by the plaintiff without any reservation and/or protest. The plaintiff was thus estopped from filing the suit. 6. The defendants further pleaded that assessment of the damage was done by the officials of the State Government by associating the representatives of the villages. The plaintiff was thus estopped from filing the suit. 6. The defendants further pleaded that assessment of the damage was done by the officials of the State Government by associating the representatives of the villages. The assessment so carried out was duly authenticated by the State Geologist and amount paid to the plaintiff and other persons whose properties were damages. Objections as to maintainability of the suit and limitation were also raised. 7. On the pleadings of the parties, following issues were framed by the learned court below :— 1. Whether the house of the plaintiff was damaged on account of the act of defendants No.1 and 2? OPP. 2. If issue No.1 is proved to what amount of compensation and from whom is the plaintiff entitled to? OPP. 3. Whether the suit of the plaintiff is not maintainable against defendants No.1 and 2? OPD-2. 4. Relief. 8. The learned court below decided issues No.1 and 2 in favour of the plaintiff and held the plaintiff to be entitled to damages to the tune of Rs 5,62,700/-. Issue No. 3 was found against the defendants. In view of such findings a decree for a sum of Rs. 5,62,700/- was passed in favour of the plaintiff and against the defendants/appellants as aforesaid. 9. Feeling aggrieved by and being dis-satisfied with the judgment and decree dated 12.9.2003 of the learned District Judge, the defendants have approached this Court by way of the present appeal. 10. The first question arising for determination in the present case is whether the suit of the plaintiff is within time? 11. There is no dispute that the present case would be governed by Article 113, Limitation Act, 1963, which provides for a period of limitation of three years to be reckoned from the date when the right to sue accrued. 12. Order 7, Rule 1, Code of Civil Procedure, which provides for the particulars to be contained in the plaint, reads :— "The plaint shall contain the following particulars :— (a) ......................................; (b) ......................................; (c) .....................................; (d) ......................................; (e) the facts constituting the cause of action and when it arose; (f) ......................................; (g) ......................................; (h) ......................................; (i)......................................." 13. 12. Order 7, Rule 1, Code of Civil Procedure, which provides for the particulars to be contained in the plaint, reads :— "The plaint shall contain the following particulars :— (a) ......................................; (b) ......................................; (c) .....................................; (d) ......................................; (e) the facts constituting the cause of action and when it arose; (f) ......................................; (g) ......................................; (h) ......................................; (i)......................................." 13. The statement as to facts constituting the cause of action and when it arose, is necessarily for the purpose of enabling the Court or the defendant to ascertain from the plaint whether there is a cause of action and whether it is not barred by the law of limitation. 14. The plaintiff has set out the facts constituting the cause of action in paras 3 to 5 as under :— "3. That the defendant No. 1, i.e., the Nathpa Jhakri Power Corporation Limited, is a joint venture of the State of Himachal Pradesh and the Government of India. The defendant Nos. I and 2 are executing the Nathpa Jhakri Power Project since 1987-88. For the construction of the said project, the defendant Nos. 1 and 2 acquired movable and immovable properties of different persons in the area. 4. That in order to complete the work of the project, the main tunnel of about 27.5 kms. has been constructed underground, from Nathpa to Jhakri. Apart from the main tunnel, the defendant Nos. 1 and 2 have constructed various adits at different points for different purposes. The main tunnel and adits have been constructed on the spot by making heavy blastings, which continued for quite a long time. 5. The villages Baroh and Nigulsari are just above the main tunnel and adits. As already submitted in para supra that on account of the heavy blastings in the tunnel and adits, single storeyed house of the plaintiff has been substantially damaged. So cracks have appeared in the building of the plaintiff and the value and utility of the said building of the plaintiff has got materially impaired and the house in question is now not worth living. In order to avoid any mis-happening in the building, the plaintiff has been forced to vacate the same, which as a matter of fact, is not fit for human habitation. As per the report of the expert, the building has been substantially damaged and is not at all safe for human habitation.” 15. In order to avoid any mis-happening in the building, the plaintiff has been forced to vacate the same, which as a matter of fact, is not fit for human habitation. As per the report of the expert, the building has been substantially damaged and is not at all safe for human habitation.” 15. In para 12 of the plaint, the plaintiff, as to when the cause of action accrued to him, has averred :— "That the cause of action arose in favour of the plaintiff and against the defendant Nos. 1 and 2, firstly, when the house of the plaintiff was damaged due to the heavy blastings for construction of the main tunnel and adits for the construction of Nathpa Jhakri Power Project and thereafter, when the defendants No.1 and 2 paid meagre amount of compensation for the same in the month of September, 2000, which amount was received by the plaintiff under protest and the cause of action thereafter arose against the defendant Nos.1 and 2 when they did not reply to the legal notice dated 15.12.2000 and the cause of action is still continuing against the defendant Nos. 1 and 2.” 16. The plaintiff as his own witness as PW 1 has admitted that the work of excavation of tunnel was started sometime in the year 1990-91 and that the damage to his property was caused in 1992-93. Though he has gone to state that the damage is still continuing. 17. In view of the admission of the plaintiff himself as PW 1 that damage to his property was caused in 1992-93, the cause of action definitely had arisen to him then. 18. It may be noted that the words "cause of action" are used in a more comprehensive sense and includes the words "right to sue" and comprise the entire set of facts that give rise to an enforceable claim, that is, the right and its infringement. 19. Under Article 113, Limitation Act, time begins to run from the date when "the right to sue" accrues. The words "right to sue" mean a right to seek relief, that is, a right to prosecute by law, to obtain relief by means of legal procedure. A "right to sue" contemplated under this article accrues when a cause of action arises. 20. The Honble Supreme Court in Mst. The words "right to sue" mean a right to seek relief, that is, a right to prosecute by law, to obtain relief by means of legal procedure. A "right to sue" contemplated under this article accrues when a cause of action arises. 20. The Honble Supreme Court in Mst. Rukhmabai v. Lala Laxminarayan and others, AIR 1960 SC 335, while dealing with Article 120, Limitation Act, 1908, which corresponds to Article 113 of the Limitation Act,1963, has stated the legal position as under :— ".....The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally thereatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right." 21. The above statement of legal position was reiterated in Gannon Dunkerley and Co. Ltd. v. The Union of India, AIR 1970 SC 1433. 22. Relying upon the said legal position, it has been contended on behalf of the plaintiff that the "right to sue" accrued to the plaintiff within the meaning of Article 113, Limitation Act, 1963, only in September, 2000 when his claim as to compensation for the damage caused to his property due to blasting operations was finally rejected by the defendants No. 1 and 2 the damage caused to his property due to blasting. 23. It is significant to note that there is nothing either in the pleadings or in the evidence as to when the claim for compensation was made by the plaintiff and if so, to what extent. Even the plaintiff as PW 1 has not stated even a single word in this regard. Therefore, on the facts and in the circumstances of the present case, the cause of action arose and the right to sue accrued to the plaintiff on the day when damage is alleged to have been caused to his building due to the blasting operations carried out by the defendants No.1 and 2 for the purpose of excavation of tunnel. Therefore, on the facts and in the circumstances of the present case, the cause of action arose and the right to sue accrued to the plaintiff on the day when damage is alleged to have been caused to his building due to the blasting operations carried out by the defendants No.1 and 2 for the purpose of excavation of tunnel. As stated above, the plaintiff as PW 1 has admitted that his property was damaged in 1992-93. Therefore, the present suit having been filed on 5.7.2001 above eight years after the accrual of cause of action and the right to sue is, on the face of it, barred by time. 24. The fact that no claim was lodged by the plaintiff with the defendants at any time before the filing of the suit is also established by the evidence of the plaintiff himself. Ex. PW 3/A is the estimate prepared by PW 3 Er. Susheel Sharma with regard to the damage to the property of the plaintiff. PW 3 for the first time had visited the site on 3.11.2000 for the purpose of inspection and assessment of damage. If the estimate/assessment as to damage was got prepared by the plaintiff only in November, 2000, it cannot be said that he had at any time lodged a claim with the defendants No.1 and 2. 25. The payment of the amount of Rs. 22,500/- as compensation to the plaintiff by defendants No. 1 and 2 in September, 2000 will neither extend the period of limitation nor would afford a fresh cause of action to the plaintiff. 26. For the foregoing reasons the present appeal is allowed. The impugned judgment and decree are set aside and the suit of the plaintiff is dismissed. No orders as to costs. Appeal allowed.