IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 298 of 1997. Judgement reserved on: 7.7.2008. Date of decision: July 15, 2008. Anirudh ….. Appellant. Vs. Smt. Rasho wd/o Devi Dayal & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Rajnish K. Lall, Advocate vice Mr.K.D.Sood, Advocate. For the Respondents : Mr. Vikram Thakur, Advocate, vice Mr. Vijay Thakur, Advocate, for respondents No. 1(a) to 1(e). Kuldip Singh, Judge. The defendant has filed this appeal against the judgement, decree dated 17.9.1997 passed by learned District Judge, Chamba in Civil Appeal No. 18 of 1996 decreeing the suit of Devi Dayal plaintiff, the predecessor in interest of the respondents for Rs.10,000/-. 2. The facts in brief are that Devi Dayal the predecessor in interest of respondents filed a suit for recovery of Rs.12,410/- against the appellant for causing damage to his house. The case of the plaintiff was that his double storeyed house existed on the suit Whether the reporters of the local papers may be allowed to see the Judgment? …2… land. The defendant constructed a double storyed house on khasra No. 775. There was a galli in between the houses of the plaintiff and defendant. The defendant without notice to the plaintiff started dismantling of his house on 18.4.1992, as a result of which galli owned and possessed by plaintiff settled down exposing the foundations of the house of the plaintiff. The wall of the plaintiff’s house suffered extensive cracks due to illegal digging done by the defendant and plaintiff suffered damage to the extent of Rs.12,410/-. In these circumstances, the suit was filed. 3. The defendant contested the suit in which preliminary objections of estoppel, maintainability and locus-standi were taken. On merits, the defendant pleaded that his house was in dilapidated condition, which required repairs. He only removed the projections of his house which caused no damage to the house of the plaintiff. The defendant denied the claim of the plaintiff. Replication was filed in which defence set up by the defendant was denied. The learned Senior Sub Judge vide judgement and decree dated 6.8.1996 held that defendant demolished his house and damage was caused to the house of the plaintiff, but plaintiff has failed to prove that defendant had demolished his house with an intention to cause damage to the plaintiff’s house and learned Senior Sub Judge dismissed the suit. The plaintiff filed an appeal against the decision dated 6.8.1996. The learned District Judge vide judgement and decree dated 17.9.1997 decreed the suit of the plaintiff for Rs.10,000/-. The original plaintiff Devi Dayal died during the pendency of the appeal and his legal representatives were brought …3… on record. The appeal has been admitted on the following substantial questions of law:- 1. Whether in the facts and circumstances of the case, the defendant was within his right to repair and demolish his damaged house and the plaintiff’s suit could be decreed in the absence of actual loss or damage sustained? 2. Whether the plaintiff was bound to mitigate the loss and repair the alleged damage caused to his house in 1992? 3. Whether in the absence of proof of repair being damaged, the claim for damages was sustainable especially when the defendant had not intentionally and willfully demolished the house to cause damage to the house of the plaintiff? 4. I have heard Mr. Rajnish K. Lall, Advocate appearing vice Mr. K.D.Sood, learned counsel for the appellant-defendant and Mr. Vikram Thakur, Advocate appearing vice Mr. Vijay Thakur, learned counsel for respondents No. 1(a) to 1(e) and gone through the record. On behalf of the appellant- defendant, it has been submitted that learned District Judge has erred in decreeing the suit of the respondents- plaintiff in absence of proof of actual loss or damage. The plaintiff was bound to mitigate the loss, if any, he suffered due to the acts of the defendant. The intentional and willful acts of the appellant- defendant for causing the damage have not been proved, therefore, learned District Judge has erred in decreeing the suit. The learned counsel for the respondents-plaintiff has …4… supported the impugned judgement and decree and has submitted that negligent acts on the part of the appellant- defendant have been proved on record which caused damage to the house of the respondents- plaintiff. There is concurrent finding of fact so far as damage to the house of the respondents- plaintiff is concerned. The learned counsel for the respondents- plaintiff has submitted that no substantial question of law is involved in the appeal and, therefore, he prayed for dismissal of the appeal. Substantial questions of law No. 1 to 3: 5. The substantial questions of law No.1 to 3 are interconnected, therefore, all of them are being disposed of collectively. The two courts below have concurrently held that house of the plaintiff was in fact damaged by the acts of the defendant. The trial court has held that intentional acts of the defendant have not been proved, therefore, the learned trial court dismissed the suit. The learned District Judge on facts took the view that defendant was negligent with respect to his own property which caused damage to the house of the plaintiff, and therefore, defendant is liable for his acts. 6. The plaintiff examined PW 4 Rakesh Singh, who has proved plan Ex. PW 4/A of the house of the plaintiff and Ex. PW 4/B showing that plaintiff had suffered loss/ damage of Rs.12410/-. In fact, in the substantial questions of law, the quantum of loss assessed by PW 4 Rakesh Singh has not been challenged nor the genuineness of the estimate Ex. PW 4/B has been assailed. The plaintiff by examining PW 4 and by way of his own statement coupled with other …5… evidence on record has proved the loss/ damage caused by the defendant to his property. 7. The learned District Judge has recorded a finding of fact that defendant was negligent in dismantling his house which caused damage to the property of the plaintiff. The question in the present case is of negligence of defendant for causing damage to the house of plaintiff and not willful and intentional acts of defendant. Once it is found that defendant was negligent while dismantling is house which caused damage to the house of the plaintiff, then the question of his intention becomes irrelevant. The loss to the house of the plaintiff has been proved by PW 4. The defendant had started dismantling his house on 18.4.1992. The suit was filed on 29.6.1992. The defendant has not proved on record that within the gap of these two months the damage to the house of the plaintiff increased due to factors not connected with the acts of defendant. The plaintiff has filed the suit on the basis of damage caused to his house by the defendant due to dismantling of the house which was started on 18.4.1992. In these circumstances, mitigation of the damage does not arise. In fact, no specific plea regarding mitigation of damage on the part of the plaintiff has been pleaded by defendant nor any issue to this effect has been framed, nor such ground was taken in first appellate court. Therefore, in the second appeal the plea of mitigation of loss by plaintiff is otherwise not available to the defendant. The suit of the plaintiff is based upon damage to his house by the negligent acts of the defendant and keeping in view the nature of the suit the plaintiff was not required to prove actual repair of …6… the damaged house before claiming damages. PW 4 in Ex. PW 4/B has shown damage to the extent of Rs.12410/-, but learned District Judge has decreed the suit only for a sum of Rs.10,000/-. In the facts and circumstances of the case, no fault can be found with the amount awarded by the learned District Judge to plaintiff on account of damage to his house, more particularly, when plaintiff himself has accepted the impugned judgement and has not filed any cross - objections. The appellant- defendant has failed to make out any case for interference. The substantial questions of law No. 1 to 3 are decided against the appellant. 8. No other point was urged. 9. As a result of the above discussion, the appeal fails and the same is accordingly dismissed. July 15, 2008. ( Kuldip Singh ) (Hem) Judge.