IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 28TH FEBRUARY 2011 / 9TH PHALGUNA 1932 SA.No. 499 of 1998(A) ------------------------------- AS.119/1996 of SUB COURT, KASARAGOD OS.421/1994 of PRL.MUNSIFF, KASARAGOD .................... APPELLANT(S): APPELLANT/PLAINTIFF --------------------------------------------------------- P.VASUDEVA HOLLA, S/O. VENKATARAMANA HOLLA, RESIDING AT NEAR BAYAR, SRI.PANCHALINGESHWARA TEMPLE, BAYAR VILLAGE, KASARAGOD TALUK, P.O.CHIPPAR. BY ADV. SRI.D.KRISHNA PRASAD SRI.M.HARISHARMA SRI.JOJI VARGHESE SRI.D.NARENDRANATH SRI.T.P.ELDHOSE RESPONDENT(S): RESPONDENT/DEFENDANT ----------------------------------------------------------------- CHANIYA MOOLYA, S/O. DOOMA MOOLYA, RESIDING AT NEAR BAYAR SRI. PANCHALINGESHWARA TEMPLE, BAYAR VILLAGE, KASARAGOD TALUK, P.O.CHIPPAR. ADV. SRI.K.G.GOURI SANKAR RAI THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/02/2011 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.BHAVADASAN, J. ---------------------------- S.A.No. 499 of 1998 --------------------------------- Dated this the 28th day of February, 2011 JUDGMENT The plaintiff in O.S.No.421/1994 before the Munsiff's Court, Kasaragod is the appellant. He was non suited by the courts below. 2. The suit was one for damages. According to the plaintiff as a result of the defendant negligently cutting a mango tree standing in the property which fell on the crops in his property, damages were caused to the same. Ext.A1 notice was issued to the plaintiff to which the defendant gave a false reply. The incident occurred on 01.06.1994. The plaintiff would also allege that there was a coconut trees standing in the property of the defendant which was dangerously positioned and he had cautioned the plaintiff that it might fall into the property of the defendant and cause further damages to him. Defendant paid no heed to it. Finally the calamity to be occurred. 3. On the basis of the claim that the crops of the plaintiff were damaged due to the negligence of the defendant, the suit was laid claiming an amount of Rs.7500/-. S.A.No. 499 of 1998 2 4. The defendant resisted the suit. It was claimed by him that the mango tree was cut by him on 06.08.1994 as regards the coconut tree that had fallen due to the natural causes and he was not liable for the same. He denied the allegation that as a result of his negligent act damages were caused to the plaintiff. On the basis of these contentions, he prayed for a dismissal of the suit. 5. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 and A2 from the side of the plaintiff. The defendant examined DW1 and had Exts.B1 and B2 marked. Ext.C1 is the commissioner's report. The trial court on an evaluation of the evidence came to the conclusion that there was nothing to show that the damages were caused to the plaintiff's crops as a result of the negligent act of the defendant and also that coconut trees might have been uprooted due to natural causes and therefore declined to grant relief to the plaintiff. Disappointed, the plaintiff took up the matter in appeal as A.S.No.119/1996. The appellate court was of the view that since the commissioner did not revisit the property as demanded by the counsel for the defendant, the commissioner's report could not be accepted. The lower appellate court was also fell in tune with the trial court in holding that natural calamity might have caused the damage S.A.No. 499 of 1998 3 and dismissed the appeal. 6. Notice is seen issued in the following substantial questions of law: 1. Whether a report made by a Commissioner appointed by the Court was liable to be brushed aside on the ground that the Counsel for one of the parties was not present when the Commissioner made the inspection and when the party himself was present. 2. In a suit for damage, when the Commissioner appointed by the Court has estimated the damages, whether the Court was justified in not awarding damages at least in conformity with the assessment made by the Commissioner, especially when there is no dispute that the plaintiff has sustained damages. 3. When the evidence tendered by the defendant as DW1 is against the pleadings made by him in his written statement and when such evidence clearly indicates that the pleadings in the written statement are absolutely untrue, was not the plaintiff entitled to a decree for damages at least in conformity with the assessment made by the Commissioner and particularly when there is no dispute that the plaintiff has infact sustained damages. 4. Are not the decisions of the Courts below vitiated by reason of misreading of the pleadings and the evidence adduced in the case. S.A.No. 499 of 1998 4 5. Whether under the facts and circumstances of the case, the Courts below were right in declining to grant relief to the plaintiff. 7. The learned counsel for the appellant contended that both the courts below have not adverted to the relevant facts and the evidence in the case and that has resulted in miscarriage of justice. According to the learned counsel the incident was on 01.06.1994 when branches of the mango tree were cut without taking proper care and they fell on the crops of the plaintiff and caused damage to the same. The fall of the coconut tree was later. The learned counsel pointed out that both the courts below have confused between the two incidents and have not adverted to the Ext.A1 notice. The learned counsel pointed that the reason given by the lower appellate court not to rely on the commissioner's report is unsupportable. Accordingly, she pointed out that the decree ought to have been granted in favour of the plaintiff atleast on the basis of the commissioner's report. 8. It has to be said that there is considerable force in the above submission. There are two incidents, one on 01.06.1994 and other on 16.07.1994. On 1.6.1994, the allegation was that certain branches of a mango tree which was overhanging into the property of the plaintiff were cut by the defendant without exercising proper care. The result S.A.No. 499 of 1998 5 was that the branch so cut by the plaintiff fell on the crops raised by the defendant and cause damage to the same. Regarding this incident the lower court omitted to notice that plaintiff immediately thereafter had issued Ext.A1 notice to which Ext.A2 reply was given by the defendant. That shows the plaintiff had promptly acted when he suffered damages at the first incident. Both the courts below have erred in clubbing the two incidents and then holding that there is no evidence to show that it was due to the act of the defendant that loss were caused to the plaintiff. Even assuming that the damage attributed to the fall of the coconut trees could be supported as found by the courts below, the finding as regards the loss as a result of falling of the cut branches of the mango tree necessarily needs to be interfered with. 9. There seems to be considerable force in the allegation of the plaintiff that as a result of the branches of the mango tree being indiscriminately and without care cut down and they falling on the crops of the plaintiff damages were caused to the same. 10. The lower court has noticed that there is no justification for rejecting the commissioner's report. It is seen from the commissioner's report that at the time of his visit and defendant was present and notice was given to him. The lower appellate court observed that the S.A.No. 499 of 1998 6 counsel for the defendant demanded that the commissioner should re-visit the property, but the commissioner refused to do so without orders from the court. The lower appellate court opined that the attitude of the commissioner is sufficient to reject the report. It is difficult to accept the decree of the lower appellate court in its above conclusion. The commissioner's report forms a part of the evidence on record and it is significant to notice that no objection to the commissioner's report had been filed by the defendant. There is was reason as to why the commissioner's report should have been rejected. The commissioner had found a mango tree cut from the property of the defendant. But the complaint was regarding the falling of the branches of the mango tree cut much earlier and which had fallen on the crops of the plaintiff. His prompt action of sending notice about the loss given much credence to his claim. Therefore, as far as the falling of the coconut tree is considered even though the defendant cannot be completely absolved, there is nothing to show that it was cut down by the plaintiff. 11. The commissioner's report gives details about the damages suffered by the plaintiff. The commissioner assessed loss as 2,873/-. There is no reason as to why the said amount ought not to be given to the plaintiff. S.A.No. 499 of 1998 7 12. As already stated the courts below erred in clubbing the two different incidents and then going on to hold that there is no evidence. As far the second incident is concerned there may be some justification in view expressed by the courts below. But finding as regards the first incident cannot be supported. It is clear that the plaintiff had suffered damages due to this indiscriminate and negligent action by the defendant on 01.06.1994. The result is that the appeal is allowed and the impugned judgment and decree are set aside and the decree is passed in the following terms: The plaintiff is entitled to recover a sum of Rs.2,873/- with 6% interest from the date of suit till the date of realization penalty from the defendant as well as proceeding against his assets and the appellant will also get his costs in all the courts. P.BHAVADASAN, JUDGE. ln