IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.362/1998 Reserved on: 27.11.2008 Decided on:11.12. 2008 Brahm Rishi. …Appellant. Versus Union of India. …Respondent Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. No For the Appellant : Mr. D. Dadwal, Advocate. For the Respondents : Mr. M.A. Khan, Central Government Counsel. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 24.11.1997 passed by the Additional District Judge (2), Kangra at Dharamshala in Civil Appeal No. 55-P/XIII/96. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff (hereinafter referred to as ‘the plaintiff’ for convenience sake) filed a suit for damages of Rs. 2,00,000/- as an indigent person against the respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The plaintiff has alleged in the plaint that he was having Ashram on a hilltop known as 1 Whether the reporters of Local Papers may be allowed to see the judgment? No 2 ‘Guffi Mata Da Tila’ in Tikka Latwala, Mauza Baghora, Tehsil Palampur, District Kangra since 1970. He was residing in the Ashram. The inhabitants of villages Bindraban, Chimbalhar, Mehnja, Ranisidhpur, Chowki etc. used to visit the Ashram and its temple. In the last week of February, 1987, the Naga Regiment pitched tents in Tikka Latwala, Mauza Baghora by the side of Neugal Khad near Guffi Mata Da Tilla within the jurisdiction of Gram Panchayat Baghora. They conducted firing exercise during night without taking precautions and informing the inhabitants of the surrounding villages, including the plaintiff. On 29.11.1987 at about 7-8 P.M., the Naga Regiment started firing very heavily. He was meditating at that time. The Ashram was hit by the shell and it caught fire and was reduced to ashes. He saved his life by running away from the spot. He informed Sh. Milap Chand on 1.12.1987. Sh Milap Chand submitted an application to the Sub Divisional Magistrate, Palampur for taking action against the concerned persons. The police visited the Guffi Mata Da Tilla on the order of the Sub Divisional Magistrate and recovered live and spent ammunition from the spot. He suffered loss to the tune of Rs. 2,50,000/- because of the fire in the Ashram and also for hurting his religious sentiments. The defendant contested the suit. The trial court on the basis of the evidence led by the parties, decreed the suit and awarded a sum of Rs. 2,00,000/- as damages to the plaintiff. The defendant preferred an appeal against the judgment and decree dated 28.9.1996 passed by the learned Sub Judge 1st Class in the court of Additional District Judge (2), Kangra at Dharamshala. The learned Additional District Judge (2), Kangra at Dharamshala partly accepted the appeal and the judgment and decree of the trial court was modified to the effect that instead of Rs. 2,00,000/-, the suit of the plaintiff was decreed for a sum of Rs. 10,000/-. 3 This appeal was admitted by the Court on 20.10.1998. It appears that inadvertently, the attention of the Court was not drawn to the substantial questions of law annexed with the grounds of appeal. In these circumstances, the appeal will now be deemed to be admitted on the following substantial questions of law framed at page 8 of the paper book: 1. “Whether the learned appellate court was right in reducing the damage awarded to the plaintiff-appellant after having accepted that the defendant-appellant respondent was guilty of acts of trespass, negligence, causing damage, mental shock and suffering? 2. Whether judgment of the learned appellate court is vitiated by a total mis-reading of the evidence on record? 3. Whether the learned court below was right in not considering the fact that the priceless and ancient books belonging to the Guru of the plaintiff-appellant had been completely destroyed, the plaintiff had suffered mental shock and agony and the defendant- respondent were guilty of deliberate acts of trespass reckless and wanton acts of destruction?” Mr. D. Dadwal, Advocate has strenuously argued that the judgment and decree passed by the learned Additional District Judge whereby he has modified the judgment and decree of the trial court by reducing the damages to the tune of Rs. 10,000/- is not sustainable. He has also contended that his client has led tangible evidence to prove the damages and the judgment and decree passed by the trial court is liable to be restored. Mr. M.A. Khan, Central Government Counsel has supported the judgment and decree dated 24.11.1997 passed by the learned Additional District Judge (2), Kangra at Dharamshala. I have heard the learned counsel for the parties and perused the record carefully. 4 Since all the substantial questions of law are interlinked and inter-connected, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. The plaintiff has appeared as PW-2. He has testified that he has constructed Ashram in Tikka Latwala in the year 1970 and he was residing in the Ashram. He has further deposed that initially the Army used to conduct firing training at a distance of 1 kilometer at the time of exercise with live ammunition. He has further deposed that the Army Authorities had not given any intimation of training to him nor the authorities had declared this area as firing range. He has further deposed that when he was meditating on 28.11.1987, his Ashram was reduced to ashes due to firing by the Army. He made an application to the Police authorities pursuant to which live and spent cartridges were recovered from the spot. PW-3 is Sh. Milap Chand. He has deposed that the Ashram of the plaintiff is situated in Tikka Latwala since 1970. The temple was under construction adjacent to the Ashram. The plaintiff had come to him and lodged report with him that the firing was conducted by the Army Authorities. He moved an application before the Sub Divisional Magistrate, Palampur, who marked it to the police authorities. The live and spent ammunition was recovered from the spot. He finally deposed that because of fire, the Ashram has suffered loss of Rs. 10,000 to 17,000 and the loss was also caused to the religious books. PW-4 Sh. Brij Bihari Butail has deposed that this fact was brought to his notice and he visited the spot and found that one portion of the Ashram and its doors were burnt. PW-5 Rattan Chand, PW-7 Damodar Singh and PW-8 Lal Chand have deposed that in the month of November, 1987, in the last week, they found the Ashram of the plaintiff burnt alongwith religious books. PW-6 is Shanti Saroop Sharma. He has proved on record resolution Ex.PW-6/A 5 passed by the Gram Panchayat Baghora. PW-1 Chaman Singh was posted as Sub Divisional Magistrate during the relevant time to whom application Ex.P-1 was moved by Sh. Milap Chand, Up-Pradhan (PW-3) on 1.12.1997. DW-1 Himmat Singh, Havaldar was examined by the defendant. He has deposed that no loss was caused to the Kutia during the firing exercise. It is proved on the basis of the evidence brought on record that the plaintiff’s Kutia was damaged due to firing exercise undertaken by the Naga Regiment. It has come in the evidence that the religious books were also burnt. The Ashram was being visited by the inhabitants of the surrounding villages. He had been residing in the Ashram since 1970. He managed to flee when the firing exercise was undertaken by the Naga Regiment. The plaintiff, however, has failed to lead any tangible evidence to the extent of damages suffered on account of destruction of Kutia and part of temple. It was necessary for the plaintiff to prove the factum of damages specifically. He has not produced any witness to substantiate how much money was spent while building the Ashram. It could be done by producing witness, who could pin point the money which the plaintiff had spent while constructing the Ashram. It could only be proved by producing on record the bills/cash memos etc. of the material used by him while constructing the Ashram or by at least producing few labourers who were employed for the construction of the Ashram. The damages have to be assessed and proved with certainty. In the present case, as noticed above, the plaintiff has failed to prove the exact damages suffered due to burning of the Ashram. The trial court without there being any evidence on record has awarded a sum of Rs. 2,00,000/- merely on guess work. The learned first appellate court by correctly appreciating the facts and law 6 has reduced the amount from Rs. 2,00,000/- to Rs. 10,000/-. The plaintiff has not led any evidence towards the valuation of the books which were lying in the Ashram. It was necessary for the plaintiff to produce tangible evidence to prove the damage caused to the books and their valuation. In the absence of any cogent evidence led by the parties, the Court cannot assess the actual damages. There is no question much less any substantial question of law involved in this Regular Second Appeal and this Court will not interfere with the judgment and decree passed by the learned Additional District Judge (2), Kangra at Dharamshala. Consequently, there is no merit in the appeal and the same is dismissed. There shall be no order as to costs. 11.12.2008 (Rajiv Sharma ), J. *awasthi*