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2015 DIGILAW 1823 (HP)

Tata Teleservices Limited v. Jagdish Lal

2015-12-09

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. Challenge herein is to the order dated 3.8.2015 passed by Learned Civil Judge (Junior Division), Solan in an application Under Order 7 Rule 11 of the Code of Civil Procedure filed by the petitioners herein (defendants in the trial Court). The complaint is that in the suit bearing No. 153/1 of 2005 instituted by respondent No. 1 herein (plaintiff in the trial Court) damages were not claimed against the petitioners-defendants. However, now in the subsequent suit Annexure P-5, he has claimed damages to the tune of Rs. 10,00,000/- against the petitioner-defendants. It has, therefore, been claimed that the facts on which subsequent suit has been filed were in-existence on the day when previous suit bearing No. 153/1 of 2005 (Annexure P-3) was filed. Also that the failure on the part of respondent No. 1-plaintiff to claim damages in the previously instituted suit debar him from filing the fresh suit under Order 7 Rule 11 of the Code of Civil Procedure. 2. Having gone through the record and also the submissions made on both sides, it would not be improper to conclude that Learned trial Judge has not committed any illegality or irregularity while dismissing the application vide order, under challenge in this petition, for the reasons that admittedly the cable was laid by the petitioners-defendants in the land of respondent No. 1-plaintiff without his consent. In the judgment and decree Annexure P-4 passed in the previously instituted suit this fact stands established and it is for this reason that the suit has been decreed for the relief of mandatory injunction directing thereby the defendants to remove the fiber cables laid in the land belonging to respondent No. 1-plaintiff. The judgment and decree annexure P-4 has attained finality as admittedly the petitioners-defendants have now removed the cable from the land of respondent No. 1-plaintiff. 3. It is worth mentioning that in the plaint Annexure P-3 the relief of mandatory injunction directing the petitioners-defendants to remove the cable from the land of respondent No. 1-plaintiff and also to restore the land in its original position was claimed and the opportunity was sought to claim the damages later on by filing a separate suit. 4. 3. It is worth mentioning that in the plaint Annexure P-3 the relief of mandatory injunction directing the petitioners-defendants to remove the cable from the land of respondent No. 1-plaintiff and also to restore the land in its original position was claimed and the opportunity was sought to claim the damages later on by filing a separate suit. 4. Now if the plaint Annexure P-5 which pertains to the subsequent suit pending disposal in the trial Court perused the same reveals that respondent No. 1-plaintiff has claimed the damages caused to him under different heads detailed below para-9 thereof. The same reads as follows: “A. Damages on account of measne profits for illegal use and occupation and causing obstruction to sue, enjoy and occupy the suit property since 2005 till date @ Rs 5000-00 per month. The plaintiff restricts his claim under this head for the last three years i.e. from 16.01.2010 till realization and recovery of the same which comes @ Rs 180000-00. B. Damages on account of increase in cost of construction and construction material @ Rs 3 lac only. C. Damages on account of cost of restoration of the suit property to its original position for the purposes of construction of building Rs 50000-00 only. D. Damages on account of expenses to engage professional, experts and civil engineers/structure engineers @ Rs 20000-00. E. Damages on account of obstruction to use, enjoy and occupy the building since 2006 till date @ Rs one lakh only per year. The plaintiff restricts his claim under this head for the last three years i.e. from 16.01.2010 till realization and recovery of the same which comes @ Rs 300000-00. F. Cost of litigation Civil Suit No. 1153/1 of 2005 @ Rs 50000-00. G. Mental agony, pain and suffering as well as harassment @ Rs 100000-00.” 5. In the considered opinion of this Court, the question that respondent No.1-plaintiff is entitled to any damage would have only arisen after the determination of controversy qua laying of cable in the land of respondent No.1-plaintiff. The same has now been decided in the previously instituted suit vide judgment and decree Annexure P-4. Therefore, in the peculiar circumstances, the cause of action to claim the damages accrued in favour of respondent No.1-plaintiff after the decision of the previous suit. 6. The same has now been decided in the previously instituted suit vide judgment and decree Annexure P-4. Therefore, in the peculiar circumstances, the cause of action to claim the damages accrued in favour of respondent No.1-plaintiff after the decision of the previous suit. 6. The present is a case where the provisions contained under Order 7 Rule 11 of the Code of Civil Procedure are not at all attracted. In a similar case titled Sadhu Singh and others v. Pritam Singh and another, AIR 1976 Punjab & Haryana 38, a Full Bench of Punjab and Haryana High Court has held that the subsequent suit filed for claiming the damages after the decree of possession is passed as maintainable and not barred under Order 7 Ruule 11 or Order 2 Rule II of the Code of Civil Procedure. On behalf of the petitioners reliance has been placed on the judgment dated 22.11.2013 of the Apex Court in State Bank of India vs. Gracure Pharmaceuticals Ltd. 2014 AIR (SC) 731. However, the facts in the case before the Apex Court were different to that in the present case and as such the ratio of law laid down therein is not applicable. 7. In view of what has been said hereinabove, this petition fails and the same is accordingly dismissed. Consequently the order under challenge is affirmed. 8. Pending application(s) also stands disposed of. 9. An authenticated copy to learned trial Court for record.