IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 3466 of 2009 (O&M) Date of Decision: 10.2.2010 M/S Arlum Chemicals, Sibian Road, Bathinda. ....... Appellant. Versus National Fertilizers Ltd. ....... Respondent. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri D.D.Bansal, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. C.M.No.10738-C of 2009 The application is allowed and delay of 30 days in refiling of the appeal is condoned. R.S.A.No.3466 of 2009 & C.M.No.10739-C of 2009 This Regular Second Appeal is directed against judgments and decrees dated 22.3.1999 and 9.1.2009 passed respectively by the Additional Civil Judge (Senior Division), Bathinda (hereinafter described as `the trial Court') and the Additional District Judge (Fast Track Court), Bathinda (referred to hereinafter as `the first appellate Court'). C.M.No.10739-C of R.S.A.No.3466 of 2009 (O&M) -2- .... 2009 has been moved for staying the operation of the impugned judgments during the pendency of the appeal. The plaintiff-appellant had filed a suit against the defendant- respondent for recovery of Rs.16,40,000/- as damages for the reckless and illegal discharge of rain and dirty water to its factory premises and other adjoining lands. The allegations were denied by the respondent, who pleaded that the area of its factory premises is clearly defined by boundary wall and there is fencing as well. It was, however, admitted that on 25th/26th September,1988 there was unprecedented rain in the entire State of Punjab and the low-lying areas including the Judicial Courts Complex of Bathinda were flooded, but it was denied that effluent was discharged in the area of the appellant. It was averred that there is proper system for disposal of water in the premises of the respondent. Both the Courts concluded that the appellant failed to prove that any effluent was discharged by the respondent which caused any damage to it. The Courts below further found that earlier also, the appellant had filed a suit admitting that it had suffered losses due to the act of God and a Local Commissioner was appointed in those proceedings, whose report was sought to be introduced as evidence in the instant case. However, that report was discarded for the reason that the Local Commissioner was having known proximity to the appellant. Thus, the suit as well as the appeal were dismissed. The first appellate Court also imposed a costs of Rs.30,000/- upon the appellant. R.S.A.No.3466 of 2009 (O&M) -3- .... Learned counsel for the appellant has contended that the findings of the Courts below are erroneous and are liable to be set aside as cogent evidence on record has been ignored to arrive at the same. He further contended that this itself constituted a law point and interference should be made in the instant appeal. After hearing the learned counsel for the appellant and perusing the impugned judgments, I am of the opinion that the contentions so raised are totally misplaced. The appellant had filed a suit for damages on the ground that its premises were damaged on account of the water discharge from the factory of the respondent. To establish this fact, it was important for the appellant to show by way of cogent material on record that the water was continuously being discharged from the premises of the respondent to its premises. It was also required to establish the extent of damages which it had suffered on account of the alleged action of the respondent. Unfortunately, there was no such material on record. The report of the Local Commissioner was rightly discarded as it was not sufficient to establish the case of the appellant even if it was accepted to be correct. There is no material on record to show that the factory of the respondent was not having a boundary wall or was surrounded only by a barbed wire. It has also been established by the respondent that it had approximately 15 hectares of lagoon area for drainage of water from its premises. There was no technical expert examined by the appellant to establish the water inflow to its premises from the factory of the respondent and if such an inflow was existing, what was its extent. Besides, in the earlier proceedings, the R.S.A.No.3466 of 2009 (O&M) -4- .... appellant had termed the losses to be an act of God. It cannot, therefore, now turn back from his earlier pleadings to say that the damages were on account of the discharge of water by the respondent. The Courts below were, thus, right in rejecting the claim of the appellant. However, in the given set of circumstances, I am of the opinion that the costs component which has been imposed to the extent of Rs.30,000/- by the first appellate Court while dismissing the appeal deserves to be deleted from the relief clause. Ordered accordingly. In the result, when no question of law, much less a substantial question of law is shown to have arisen for consideration of this Court, the instant appeal dismissed with the aforesaid observation. C.M.No.10739-C of 2009 is also dismissed in view of the above. February 10,2010 ( Mahesh Grover ) “SCM” Judge