IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.3400/2006 BETWEEN:
1.H N VIJAYADEV S/O NAGAPPA GOWDA AGED ABOUT 54 YEARS R/O KOPPA ROAD THIRTHAHALLI TOWN SHIMOGA DISTRICT – 577 532.
2.LOKESH GOWDA S/O MANJAPPA GOWDA AGED ABOUT 53 YEARS R/O ARAGODIGE, BASAVANI VILLAGE, THIRTHAHALLI TOWN SHIMOGA DISTRICT– 577 532.
3.H R GOPAL GOWDA S/O RAMAIAH GOWDA AGED ABOUT 50 YEARS R/O BASAVNI VILLAGE, THIRTHAHALLI TOWN SHIMOGA DISTRICT– 577 532.
4.NEELAPPA GOWDA S/O CHOODAPPA GOWDA AGED ABOUT 48 YEARS R/O ATTI KODIGE VILLAGE THIRTHAHALLI TOWN SHIMOGA DISTRICT– 577 532.
5.DIWAKARA S/O SIDDAPPA GOWDA AGED ABOUT 46 YEARS R/O KELAAKERI VILLAGE MATTUR HOBLI, THIRTHAHALLI TOWN SHIMOGA DISTRICT – 577 532.
(BY SRI S V PRAKASH, ADVOCATE) AND:
1.M D SAROJA W/O SATHYANARAYANA AGED ABOUT 48 YEARS 2.G P SATHYANARAYANA S/O PUTTAPPA GOWDA AGED ABOUT 51 YEARS BOTH ARE R/O BASAVANTHI THIRTHAHALLI TALUK SHIMOGA DISTRICT.
3.D M RADHAKRISHNA S/O MANAPPA GOWDA AGED ABOUT 46 YEARS 4.VASUDEVA S/O SADIYAPPACHAR AGED ABOUT 50 YEARS 5.KARMUGI PUTTAPPA S/O DUGGAPPA GOWDA AGED ABOUT 50 YEARS R3 TO 5 ARE ALL R/O BASAVANI THIRTHAHALLI TALUK SHIMOGA DISTRICT – 577 532.
….APPELLANTS 6.KUMARA GOWDA S/O CHOODANNA GOWDA AGED ABOUT 62 YEARS R/O ATTIKODIGE THIRTHAHALLI TALUK SHIMOGA DISTRICT- 577 532.
7.PUTTAPPA GOWDA S/O CHINNE GOWDA AGED ABOUT 47 YEARS 8.HOLEKOPPA VASU S/O NOT KNOWN AGED ABOUT 46 YEARS 9.H D HARISH S/O DHARMAIAH GOWDA AGED ABOUT 39 YEARS 10.M R SRINIVASA S/O RAMAIAH GOWDA AGED ABOUT 55 YEARS R7 TO 10 ARE ALL R/O HALAVANI VILLAGE THIRTHAHALLI TALUK SHIMOGA DISTRICT – 577 532.
11.ANNAPPA S/O PUTTAPPA AGED ABOUT 49 YEARS R/O KARMAGI THIRTHAHALLI TLAUK SHIMOGA DISTRICT – 577 532.
12.ASHOKA S/O PURUSHOTHAMA GOWDA AGED ABOUT 45 YEARS R/O PUDUR THIRTHAHALLI TLAUK SHIMOGA DISTRICT – 577 532.
13.RAMA GERUGAL AGED ABOUT 43 YEARS R/O GERUGAL THIRTHAHALLI TLAUK SHIMOGA DISTRICT – 577 532.
14.RAMAPPA S/O THAMMANNA AGED ABOUT 49 YEARS R/O VATAKODIGE THIRTHAHALLI TLAUK SHIMOGA DISTRICT – 577 532.
15.MANJUNATHA S/O KAREDANDE SRINIVASA AGED ABOUT 45 YEARS R/O MALIGE THIRTHAHALLI TLAUK SHIMOGA DISTRICT – 577 532.
... RESPONDENTS (BY SRI K T GURUDEVA PRASAD, ADVOCATE FOR R1 AND R2 SRI SHIVAKUMAR N, ADVOCATE FOR R3, 5-7, 10 AND 11 R4, 8,9,12,13,14 & 15 ARE SERVED & UNPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED:8.9.2006 PASSED IN R.A.No.4/2000 ON THE FILE OF THE SESSIONS JUDGE AND PRESIDING OFFSICER, FAST TRACK COURT-I, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED: 10.3.2000 PASSED IN OS.No.3/1990 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), SHIMOGA.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This appeal by the appellants/defendants 1 to 3 and 21 is directed against the judgment and decree passed in Regular Appeal No.4/2000 by the Sessions Judge and Presiding Officer, Fast Track Court-I, Shimoga, on 09-09-2006, wherein the said Appeal against the judgment and decree passed by the Principal Civil Judge (Sr.Dn), Shimoga in O.S.No.3/1990 dated 10-03-2000, under which the suit filed by plaintiffs came to be decreed and the defendants were directed to pay an amount of Rs.40,500/- together with interest at 6% p.a.
2. This Court has formulated the following substantial questions of law:
“ (i) Whether courts below were right in decreeing the suit for damages on the ground that cause of action being separate, distinct and divisible though defendants 11, 15 and 18 had expired and suit having been abated against them?
OR Whether the suits against defendants 11,15 and 18 having abated, the suit claim as a whole gets abated or not?
(ii) Whether Courts below were right in relying upon the evidence of PW3 alone for decreeing the suit? And, if so whether courts below were correct in decreeing the suit though said witness has denied of having lodged criminal complaint as per Exhibit P-8?
3. In addition to the said questions and considering the materials on record, following substantial question of law is framed:
Whether the ingredients in the form damnum-sine-injuria and injuria-sine- damnum are sine-qua-non to establish a case of damage?
4. In order to avoid confusion and overlapping, parties hereinafter are referred in accordance with their respective status as stood in the Trial Court.
5. Plaintiffs- M.D.Saroja and G.P. Satyanarayana said to be the spouses filed a suit in O.S.No.3/1990 against one H.N.Vijayadeva Holekoppa and 24 others for recovery of Rs.50,500/- as compensation being the estimated value of the damage caused to their house and for mental pain and agony including the transportation charges.
6. It was claimed that the plaintiffs constructed a tiles roofed house at Basavani Post, Muttur Hobli, Thirthahalli Taluk during 1988 spending substantial amount. House warming ceremony (Gruhapravesha) was fixed on 26.1.1989.
7. The defendants 1,2 and 3 were inimically disposed against the plaintiffs. They were jealous over the improvement of the plaintiffs and have been attempting to destroy their property and they were polarizing the ill minded persons against the plaintiffs.
8. Finally on 22.1.1989 at 8.00p.m. defendants 1,2 and 3 and other defendants brought their friends in vehicles to the newly built house of the plaintiffs, they were armed with deadly weapons and were in a state of intoxication, employed abusive language and tress- passed into the property of the plaintiffs and damaged the house causing damage of Rs.35,669/- as per the estimate and because of the damage to the complete house, plaintiffs suffered untold mental agony and pain and assessed it at Rs.10,000/- and also estimated Rs.4,831/- for the transportation charges of houses building material to the spot where house was located. The plaintiffs claim that the cause of action to the suit arose on 22.1.1989 and suit is filed on 18.1.1990.
9. The defendants who are 25 in numbers have appeared and filed their written statement except defendant No.5 denying all the plaint averments and contending that they are not responsible for any mental agony etc and are not liable to pay any amount to the plaintiffs and there is no cause of action for the suit and the alleged one is concocted for the purpose of the suit.
10. The learned trial Judge, adjudicated the matter considering the damage to the property of the plaintiffs and quantum of damages with reference to the liability of the defendants, framed issues and on the basis of the evidence of PWs 1 to 7, and DWs 1 to 11 and documentary evidence of Exs.P1 to P30 and Exs.D1 to D7, partly decreed the suit of the plaintiffs with costs for Rs.40,500/- with interest at 6% p.a. from the date of suit till realization of entire dues holding that defendant Nos. 1 to 14, 16,17, 19 to 25 are jointly and severally liable to pay the compensation and dismissed the suit against defendant Nos. 15 and 18 as abated.
11. Against the said judgment and decree, defendants 1 to 3, 10 and 21 have filed Regular appeal before the Sessions Judge and Presiding Officer, Fast Track Court I, Shimoga, in R.A.No.4/2000.
12. The appeal came to be dismissed with costs by judgment and decree dated 8/9/2006 confirming the judgment and decree passed by the trial court in O.S.No.3/1990 dated 10.3.2000. The same is challenged by the appellants/defendants 1 to 3, 10 and 21 under this appeal.
13. Learned counsel for the appellants Sri. S.V. Prakash would submit that both the courts below erred in law. The grievance of the defendants was never considered in proper perspective. He would further submit that no damage occurred to the property of the plaintiffs nor any bad acts were conducted by the defendants. He would further submit that plaintiffs are not sure about their own case. The pleadings contend more of emotions than of point of law. They have not established their right to recover the damages and the cause of action that was common to the defendants was not considered and there is no proper identity of the defendants being established. The criminal court has acquitted the accused in CC No.366/1989 of theirs charges as it was filed against the defendants arraying them as accused for the offences punishable under Sections 143, 147, 148, 149, 395 and 427 read with section 149 of IPC.
14.Learned counsel for the respondents 1 and 2/ plaintiffs would submit that defendants by carrying out vengeance and enmity and being jealous about the improvement of the plaintiffs attacked their newly built house and they were armed with deadly weapons and were in state of intoxication, trespassed into the house and destroyed and pulled it down and caused damage to the property.
15. Insofar as complaint is concerned, it states regarding the incident, but does not specifically states the items which are destroyed. However, estimate prepared by the engineer PW6 is marked at Ex.P26. The damages are claimed in respect of the damage caused to the plaintiffs’ property. In this connection, the two principles of legal injury are the infringements of the legal rights resulting in damage to the person or property are to be established by the plaintiffs who seek damages. In other words, ‘Damnum sine injuria and injuria sine damnum’. are the principles that have to be adhered. It is in this connection, the plaintiffs have to establish their right to recover damages.
16. In this case, the substance of the plaint is that, plaintiffs’ owned house at Basavani village, Thirthahalli Taluk Shimoga District. However, the description of the house is not given in the plaint. In this connection, learned counsel for appellants submitted that it is situated in between the line of houses on either side and being a reasonably a big village, the passersby normally will present and the incident is stated to have happened at about 8.00 p.m.
17. While submitting, learned counsel Sri. S.V. Prakash for appellants would stress that the house is not an isolated one and the incident is alleged to have been happened at 8.00 p.m. and the place was not abandoned by the crowd. More particularly, the case of the plaintiffs is not that it was only one house that was damaged. The houses situated by the side of each other are said to be of Puttappa, Jabbar and Avvamma. However, these witnesses were not examined for the reasons best known to the plaintiffs to a question. It was answered by the learned counsel for the appellants that none of the neighboring houses peoples have filed any complaint or suit against the defendants.
18. Learned counsel for appellants would submit that the complaint is lodged by one Manjunath who is examined as PW3 and he has given a clear go bye to the case of the plaintiffs and has gone on record by stating that he has not lodged the complaint when he was examined as PW5 in Criminal Case No. 366/1989.
19. At this juncture, learned counsel for appellants would submit that he has filed application under order 41 rule 27 of CPC to lead additional evidence and seeking permission to file a copy of the judgment passed in CC No. 366/1989 dated 8.11.2006 by the JMFC, Thirthahalli along with the depositions of PWs 1 to 14 and Exs.P1 to P13.
20. It is not in dispute that, PW3-Manjunath is examined as PW5 in C.C.No.366/1989 in his chief examination, he has gone to the extent of saying that he does not know who has damaged the property of the plaintiffs and further he has filed any complaint. The said complainant is examined as the witness - PW3 in the suit, wherein, he has stated that in terms of the complaint claiming damages. The point which the learned counsel wanted to drive is that the said witness PW5 (PW3 in original suit) has no regard for truth and he is a liar and not worth to be relied upon.
21. The learned counsel for appellants would further submit that the property that is said to have been damaged is not mentioned in the plaint in a descriptive or other legal manner to make note the details regarding boundary and the location.
22. Learned counsel for respondents 1 and 2 /plaintiffs would submit that as the damage claimed forms two part viz., (i) Rs.35,669/- being the estimated value of the damage caused to the house (ii) Rs.10,000/- towards suffering of mental pain and agony by the plaintiffs and (iii) Rs.4,831/- towards transportation charges of house building materials to the spot where house is built. Insofar as the damages are concerned, the estimation is prepared by PW6- Kushtagi Ananthachar. It is stated that estimation of damage is prepared on 30.6.1989 and the same is also marked as Ex.P26. The date of incident is said to be 22.1.1989 thus the gap of six days and in the gap of six days anything could have happened and i.e. not explained by the plaintiffs.
23. The estimation of the damages to the property prepared is not forthcoming and there are no details of materials affected or parts that are damaged. No details regarding the damages are satisfied.
24. A criminal case is also filed in this connection and it is stated that the defendants who are accused persons were acquitted. Further the defendants 15 and 18 were dead during the pendency of the proceedings before the trial court and case against them was abated. In this connection, no efforts are made to bring the respective legal representatives on record. Regard being had to the fact that the suit is filed for recovery of damages. The learned trial Judge or the learned First Appellate Judge should have focused their attention on the individual overtacts regarding damages caused to the house of the plaintiffs.
25. No doubt, criminal case was registered against the 25 defendants. Regard being had to the fact that it came to be acquitted and that the out come of the criminal case is not having over riding effect on the civil case. However, regarding the conduct of the parties like PW3 in the civil case who is none other than PW5 in CC No.366/1989 can be considered to the extent of the light.
26. The plaintiffs also claim that the defendants are inimical to them. However, previous enmity is like double edged weapon. Concrete and precise materials reliable are not forthcoming. The rule also shall be as much as merited. There is no proper account of the damage apart from Rs.35,669/-. No document is produced. Moreover the value estimated, in the criminal case is Rs.25,000/- (not forthcoming). The self serving statement of the plaintiffs are not enough. The plaintiffs’ should invariably establish the legal injury and the damage because of the same, in which event they are entitled for damages but, they are absent. They have failed to establish the same. They are not entitled for the same.
27. In the circumstances, I find the trial Court and the First Appellate Court have erred in decreeing the suit and confirming the same, where there was no particulars regarding the claim and contention or the extent of damage resulting for recovery from the defendants. No overtacts are established in this connection.
28. Further regarding mental agony and its assessment is concerned, it is self assumption. It is necessary to place on record, reputation is not personal assessment for himself or to his properties and it is to be assessed by others without any bias and prejudice. Self assessment and assessment of the plaintiffs in this case lack corroboration from independent angle. Regard being had to the fact that engineer is examined as PW6 who has prepared the report for the renovation made by the plaintiffs. The estimate prepared is at Ex.P26. Hence, the substantial questions of law are answered accordingly.
29. For the foregoing reasons, I find that appellants have made out a case for allowing the appeal. Thus, I find the judgments passed in O.S.No.3/1990 and R.A.No.4/2000 fail to stand upto the reasons and justifiability and they are liable to be set aside. Accordingly, it is done.
30. In the result, the appeal is allowed.
The judgment and decree passed in R.A.No.4/2000 dated 8.9.2006 by the Session Judge and Presiding Officer, Fast Track Court-I, Shimoga, confirming the judgment and decree passed in O.S.No. 3/1990 dated 10.3.2000 by the Principal Civil Judge (Sr.Dn) Shimoga is set aside. Consequently, the judgment and decree passed in O.S.NO.3/1990 dated 10.3.2000 by the trial Court is set aside.
The suit of the plaintiffs in O S.No.3/1990 on the file of the Principal Civil Judge (Sr.Dn), Shimoga, is dismissed.
It is stated that appellants/defendants 1 to 3, 10, and 21 have deposited amount and the same shall be refunded to the appellant who has deposited the said amount.
In view of the disposal of the appeal, I.A.NO.1/2019 filed for additional documents stands disposed of.
Sd/- JUDGE tsn*