1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original defendant no. 1 to quash and set aside the impugned judgment and decree passed by the learned trial Court-learned Principal Senior Civil Judge, Narmada at Rajpipla dated 19/09/2011 in Regular Civil Suit No. 9/2009 as well as the impugned judgment and order passed by the learned appellate Court-learned Additional District Judge, Narmada at Rajpipla dated 29/02/2012 in Regular Civil Appeal No. 9/20012 by which the learned appellate Court has dismissed the said appeal preferred by the appellant-original defendant no. 1 by confirming the judgment and decree passed by the learned trial Court decreeing the suit, including directing the original defendants to pay a sum of Rs. 1,50,000/- by way of compensation and loss suffered by the original plaintiff due to the negligence and wrongful act of the original defendants.
2. Respondent no. 1-original plaintiff instituted Regular Civil Suit No. 9/2009 against the original defendants in the Court of learned Principal Senior Civil Judge, Narmada at Rajpipla for a mandatory order directing the original defendants to execute the documents/sale deed in favour of the original plaintiff as well as for recovery of Rs. 1,50,000/- towards compensation/loss/damages suffered by the original plaintiff due to the negligence on the part of the original defendants by which the original plaintiff could not get the facility of water, light etc. and for the act and omission on the part of the original defendants in not transferring the suit property in favour of the original plaintiff.
2.1. It was the case on behalf of the original plaintiff that he had purchased the suit property in public auction held under Section 29 of the Gujarat State Financial Corporation Act held by original defendant no. 1-GSFC on 31/08/2001 for a sale consideration of Rs. 45,000/- which the original plaintiff had deposited/paid on 14/09/2001. It was the case on behalf of the original plaintiff that despite the fact that the original plaintiff had deposited/paid the entire sale consideration suit property has not been transferred in his name and, therefore, he could not start the business. It was also the case on behalf of the original plaintiff that due to the act and omission on the part of the original defendants he could not get light and water connection etc. and, therefore, he had suffered loss/damages and, therefore, it was requested to pass the decree to the tune of Rs. 1,50,000/-. It appears that though served, nobody appeared on behalf of the original defendants, inclusive of the appellant-original defendant no. 1. On appreciation of evidence, the learned trial Court decreed the suit in toto and not only granted the mandatory order directing the original defendants to transfer the suit property in the name of the original plaintiff by executing the documents/sale deed but also passed a decree for an amount of Rs. 1,50,000/- towards compensation/loss/damages suffered by the original plaintiff due to the negligence on the part of the original defendants. Being aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court-learned Principal Senior Civil Judge, Narmada at Rajpipla dated 19/09/2011 in Regular Civil Suit No. 9/2009 in decreeing the suit, the appellant-original defendant no. 1 preferred Regular Civil Appeal No. 9/2012 before the learned appellate Court and the learned Additional District Judge, Narmada at Rajpipla by impugned judgment and order dated 29/02/2012 has dismissed the said appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the appellant-original defendant no. 1 has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. At the outset, it is required to be noted that this Court admitted the present Second Appeal by raising the following substantial questions of law;
(1) Whether in the facts and circumstances of the case, without proving the actual loss or damages the learned trial Court could have awarded Rs. 1,50,000/- towards damages/loss as alleged?
(2) Whether in the facts and circumstances of the case, more particularly, when admittedly the plaintiff was in possession of the plot in question and using all the facilities such as electricity, water etc. without leading any further evidence with respect to the actual loss/damages suffered, the learned trial Court was justified in awarding damages of Rs. 1,50,000/-?
4. Shri R.D. Dave, learned advocate appearing behalf of the appellant-original defendant no. 1 has vehemently submitted that the learned trial Court has materially erred in passing the decree of Rs. 1,50,000/- towards compensation/damages/loss, though the actual loss/damages has not been proved by the original plaintiff by leading evidence. It is submitted that unless and until the evidence is led by the original plaintiff to prove the actual loss/damages, the learned trial Court was not justified in passing the decree of Rs. 1,50,000/- towards compensation/damages/loss. It is submitted that as such the original plaintiff was already in possession of the plot in question and was using all the facility such as electricity, water etc. and, therefore, without leading any further evidence with respect to the actual loss/damages suffered, the learned trial Court was not justified in awarding the damages to the tune Rs. 1,50,000/- and, therefore, it is requested to allow the present Second Appeal to the aforesaid extent.
5. Ms. Amrita Ajmera, learned advocate has appeared on behalf of respondent no. 1-original plaintiff. It is submitted that as such the learned trial Court has passed the decree of Rs. 1,50,000/- towards compensation/loss/damages, which in the facts and circumstances of the case is not required to be interfered with by this Court, more particularly, when despite the original plaintiff purchased the suit property in public auction and paid the entire sale consideration within the stipulated time the original defendants did not execute the documents with respect to the title in his favour and thereby he could not start the business and, therefore, the original plaintiff suffered loss and, therefore, in the facts and circumstances of the case, the learned trial Court has not committed any error and/or illegality. It is submitted that as such when the original plaintiff purchased the suit property in public auction held by GSFC and when the auction purchaser deposited the entire sale consideration within the stipulated time it was the duty of the original defendants to see that the documents of the title is issued in favour of the original plaintiff and the documents is executed so that he could have got other facilities and, therefore, it is submitted that as such no illegality has been committed by the learned trial Court in passing the decree of Rs. 1,50,000/- towards compensation and the same is rightly confirmed by the learned appellate Court. It is submitted that in any case as such in the facts and circumstances of the case and when the original plaintiff suffered a lot for no fault of him and no documents was executed in favour of the original plaintiff, which compelled him to institute the suit, even the learned trial Court was required to allow the suit with exemplary cost.
6. Shri Rutvij Bhatt, learned advocate appearing on behalf of the original defendant no. 2 has supported the appellant- original defendant no. 1.
7. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as the documents on record, which is produced by the learned advocate appearing on behalf of the original plaintiff. At the outset, it is required to be noted that in the suit, original plaintiff claimed Rs. 1,50,000/- towards loss/damages suffered by him due to the negligence on the part of the original defendants in not executing the documents/sale deed in his favour though he paid the entire sale consideration on 14/09/2001 and because of that he could not start the business/Gruh Udhyog. The learned trial Court decreed the suit by holding that the original plaintiff is entitled to Rs. 1,50,000/- towards compensation/loss/damages suffered by him due to the negligence on the part of the original defendants in not executing the documents/sale deed in his favour. However, it is required to be noted that admittedly the original plaintiff had not led any evidence to prove the actual loss/damages suffered by him due to the negligence on the part of the original defendants in not executing the sale deed/documents in his favour. Under the circumstances, in absence of any evidence, with respect to the actual loss or damages suffered by the original plaintiff, the learned trial Court has materially erred in passing the decree of Rs. 1,50,000/- towards compensation/loss/damages suffered by the original plaintiff. Under the circumstances, the impugned judgment and decree passed by the learned trial Court confirmed by the learned appellate Court in passing the decree for an amount of Rs. 1,50,000/- towards compensation cannot be sustained. However, in the facts and circumstances of the case and when the original plaintiff deposited the entire sale consideration of Rs. 45,000/- as far back as in the year 2001 and still no documents/sale deed was executed in his favour, which compelled him to institute the suit, the suit is to be decreed with exemplary cost, which can be quantified at Rs. 15,000/-. To that extent, the judgment and decree passed by the learned trial Court confirmed by the learned appellate Court is required to be modified.
8. In view of the above and for the reasons stated hereinabove, the present Second Appeal succeeds in part. The impugned judgment and decree passed by the learned trial Court-learned Principal Senior Civil Judge, Narmada at Rajpipla dated 19/09/2011 in Regular Civil Suit No. 9/2009 is hereby modified to the extent of quashing and setting aside the judgment and decree for recovery of Rs. 1,50,000/- towards compensation/loss/damages suffered by the original plaintiff and instead the suit with respect to the mandatory order/injunction directing the respondents to institute the sale deed with respect to the suit property is hereby confirmed with exemplary cost, which is quantified at Rs. 15,000/-, which shall be paid to the original plaintiff by the appellant-original defendant no. 1 within a period of four weeks from today and concerned respective original defendants are hereby directed to execute the document with respect to the title of the suit property in favour of the original plaintiff within a period of eight weeks from today. The present Second Appeal is allowed to the aforesaid extent. No cost.
CIVIL APPLICATION No. 6745/2012 In view of the order passed in the Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.)
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