IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA OSA No.36 of 2001 Judgment reserved on: 4.3.2008 Date of decision: 31.3.2008 H.P. State Electricity Board …Appellant -Versus- Sh.Sukh Dev and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting? No For the Appellant: Mr.K.D.Sood, Advocate. For the respondents: Mr.Ramakant Sharma, Advocate. Deepak Gupta, J. This appeal by the H.P. State Electricity Board (hereinafter referred to as the plaintiff) is directed against the judgment and decree of a learned Single Judge of this Court dated 26.9.2001 dismissing the suit for recovery of damages filed by the plaintiff. The plaintiff filed a suit claiming Rs.10,15,324/- as damages from the respondents (hereinafter referred to as the defendants). The case set up by the plaintiff was that the Gram Panchayat Dehan vide Resolution dated 12.7.1991 had consented to part with certain land for construction of a 132 KV Sub Station. A notification under Section 29 of the Indian Electricity (Supply) Act, 1948 was issued for setting up of the project including Sub Station. Public Notice was issued and objections were called for but no objections were received from any quarter. The Board obtained permission from the requisite Ministries and started construction of the Project. According to the plaintiff, the defendants who are highly litigant persons with a view to gain cheap notoriety forcibly stopped the construction work and instigated other 2 persons of the area to institute a civil suit to delay the setting up of the Project. A Civil Suit No.142 of 1994 was filed by the defendants in this Court. According to the plaintiff by misrepresentation of fact an ad interim stay order was obtained. The suit was thereafter transferred to the Court of District Judge, Kangra who vacated the stay order on 22.5.1995. The appeal filed by the defendants was dismissed. According to the plaintiff the stay order which was obtained by mis-representation of facts delayed the setting up of the Project for the period 22.10.1994 to 22.5.1995. The machinery, men and material remained idle resulting in loss of more than Rs.20 lakhs. Hence, the suit for Rs.10,15,324/-. The defendants contested the suit and took up various objections. According to the defendants they were bonafide prosecuting the suit and stay order was passed by this Court after hearing both parties. They further alleged that the land over which the Sub-Station was being raised was in fact in the possession of the Forest Department subject to the right of the right holders. Since this land formed part of the reserved pool and the defendants were right holders they had filed the earlier suit to protect their rights in the suit land. They have also submitted that the State of Himachal Pradesh in the written statement filed in the earlier suit had admitted that the playground of the High School existed on a portion of the land and that no lease has been executed in favour of the plaintiff. According to the defendants they never stopped the work but only obtained stay orders from the Court. Rest of the averments were denied. On the pleadings of the parties, the following issues were framed: “1.Whether the plaintiff has no cause of action to file the suit, if so, its effect? OPD. 2.Whether the defendants by their acts and conduct and deeds forcibly stopped the construction and malafidely delayed the project, if so, its effect? OPP. 3 3.Whether the plaintiff is entitled to claim any damage especially when the plaintiff, in the written statement filed in the earlier suit, had not claimed any damages? OPD. 4.Whether the suit of the plaintiff is not maintainable as alleged? OPD. 5.Whether the plaintiff is estopped from filing the present suit? OPD. 6.Whether the defendants had initiated the earlier proceeding to protect their rights and the same was for a reasonable and public cause and without malice on the part of the defendants? OPD. 7.Whether the plaintiff is entitled to damages suffered by it, if so, to what extent and from whom? OPP. 8.Relief.” Issues No.1,3,4 and 5 were decided against the defendants. They have not challenged these findings and therefore the present appeal is confined to issues 2,6 and 7 only. The main question which arises for determination in this appeal is whether the defendants have managed to delay the Project by their malafide acts thereby entitling the plaintiff to claim damages and if the plaintiff is held entitled to claim damages, the amount of damages. We have heard Sh.K.D.Sood, learned counsel for the plaintiff and Shri Ramakant Sharma, learned counsel for the defendants. The only ground for claiming damages is that the defendants instituted a false and frivolous civil suit and obtained a stay order which delayed the construction of the Project for the period 22.10.1994 to 22.5.1995. Though in the plaint other allegations were levelled against the defendants but no evidence was led. The only question is whether Civil Suit No.142 of 1994 was filed mala fide and without reasonable or proper cause and stay order obtained in a surreptitious manner. The filing of the suit is not denied. In the said suit the defendants have claimed that the land in khasra Nos.632/7/1 and 74/1/1 in Bag Bhula, Mauja Dehan, Tehsil Nurpur, District Kangra was being used by the villagers for the use of the general public as playground of the school and which formed part of the general pool and did not vest in the State Government. They had also prayed that the plaintiff herein be restrained 4 from interfering with the exclusive enjoyment of the suit land. The case set up by the present defendants in the said suit was that the land in question is in possession of the Forest Department subject to the rights of the rights holders. The present defendants claimed to be the right holders and allege that the portion of the suit land was being used as a playground and to hold a fair. The suit was contested by the present plaintiff. Admittedly at the time when the suit was filed the State had not leased out the land in question to the plaintiff. It was also admitted by the State that in some portion of the land there was a school playground and an annual fair was held on this land. The entries in the revenue record also showed that there were rights of the villagers in the suit land. It cannot be said that the suit was totally frivolous. Every party has a right to approach the Court to assert its right. If it fails to prove its right the suit will be dismissed. The Court while dismissing the suit can impose costs and can in certain cases impose exemplary costs. This does not mean that the party which succeeds cannot claim damages if costs are not awarded. However, damages can only be claimed when the suit is shown to be malafide or vexatious or based on totally false averments. On behalf of the plaintiff it is contended that the earlier suit was malafide because earlier one writ and a suit in respect of the same property were filed and were dismissed/withdrawn. These proceedings were admittedly not filed by the present defendants and there is not an iota of evidence to show that the said proceedings were filed at the behest or with the consent of the defendants. It would not be out of place to mention that on 28.10.1994 when the ad-interim stay order was granted by the Court in Civil Suit No.142 of 1994 the plaintiff was duly represented in the Court. The ad interim stay was not obtained at the back of the plaintiff. The Court obviously granted the stay order after being satisfied that there is a some prima facie case in favour of 5 the present defendants. The arguments on the stay application were also heard. However, due to the enhancement of the pecuniary jurisdiction of the District Judges the suit was transferred to the Court of the learned District Judge, Kangra and therefore there was delay in disposal of the suit. We have gone through the record and find that the defendants herein did not in any manner delay the decision of the stay application. Therefore, the plaintiff has failed to prove that the suit filed by the defendants was so vexatious so as to entitle them to claim damages. It cannot be said to be malicious also. Even otherwise the plaintiff has failed to prove what are the damages suffered by it. It has just proved on record some extract prepared by the department to prove the damages. This extract is PW-1/23. Interestingly this document contains the details of the salary paid to the staff of the Sub Division from 28.10.1994 to 20.5.1995. The plaintiff has however not led any evidence to show that this staff was deputed solely for the purpose of erecting the Sub Station. The stay was only with regard to the Sub Station and the entire work of the Sub Division had not been stayed. Further more once the Court had granted stay in the presence of the plaintiff it should have taken steps to depute the staff somewhere else to mitigate the damages. The plaintiff has failed to prove on record the details of the staff which were actually deputed for the construction of the work which was stayed. The plaintiff has failed to prove the damages, if any, suffered by it. In view of the above discussion, we find no merit in the appeal which is accordingly dismissed with no order as to costs. ( Deepak Gupta ), Judge March 31, 2008. ( Rajiv Sharma ), PV Judge