IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 122 of 2000 Alongwith Cross Objection No. 373 of 2000 Reserved on : 10.12.2009 Date of decision : 24.12.2009 Smt. Naresh Mahajan and others …Appellants. Versus Govind Singh …Respondent Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the Appellants: Mr. Anand Sharma, Advocate. For the Respondents: Mr. G.C.Gupta, Sr. Advocate with Ms. Madhavi Singh, Advocate. Deepak Gupta, J. This Regular Second Appeal is directed against the judgement of the learned District Judge, Chamba in Civil Appeal No. 4 of 1998 decided on 29.9.1999 whereby he partly allowed the appeal filed by the appellants (here-in-after referred to as the defendants) and modified the judgement and decree dated 15.12.1997 passed by the learned Senior Sub Judge, Chamba in Civil Suit No. 572 of 1993. Briefly stated the facts of the case are that respondent Govind Singh (here-in-after referred to as the plaintiff) filed a suit for recovery of Rs. 87,980/- against the defendant Shri Sita Ram. The allegation in the suit was that the plaintiff is owner in possession of land situate in Khata Khatouni No. 260/287 Khasra No. 7131 measuring 404 square yards, in Chamba town and on this land one residential house, court-yard, orchard and agricultural 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 land was existing. The deceased Sita Ram was owner in possession of adjoining land in Khasra Nos. 7127, 7137 and 7136 where he set up a Petrol Pump. The land of the defendant Sita Ram was at a higher level. According to the plaintiff, deceased Sita Ram despite objections by the plaintiff and without any permission constructed a Kucha retaining wall 42 to 45 feet in height and 3 to 4 feet wide on the debris which was left after construction of the Petrol Pump. The plaintiff requested Sita Ram not to construct such a huge retaining wall. In May, 1993 the aforesaid retaining wall developed cracks and the plaintiff requested the defendant to take steps to prevent further damages. Notice was issued also. On 10.7.1993, a major portion of the aforesaid retaining wall gave way and fall on the property of the plaintiff and damaged his store, septic-tank, latrine, kitchen, bath room, electric wiring, water pipeline, etc. The plaintiff filed a suit claiming damages of Rs.87,980/-. The defendant contested the suit. He filed a written statement alleging that he had constructed a proper retaining wall on solid strata. According to him, in July 1993 due to unprecedented rain- fall a portion of the wall gave way. He further submitted that no damage has been caused to the property of the plaintiff. During the pendency of the suit the defendant expired. His legal heirs were brought on record and they contested the suit. The learned Trial Court held that damage to the property of the plaintiff had been caused due to the fact that the retaining wall constructed by the defendant Sita Ram collapsed. He held that it was proved that cracks in wall had appeared in May 1993 prior to 3 the rains. Despite request of the plaintiff defendant Sita Ram had not repaired the cracks and therefore according to the learned Trial Court negligence was of the defendant. He assessed the loss at Rs. 87,980/- and passed a decree for this amount in favour of the plaintiff and against the defendants. The defendants filed an appeal before the learned lower Appellate Court. One of the grounds taken was that since the defendant had expired the cause of action to continue the proceedings did not survive. The learned lower Appellate Court did not accept this contention of the defendants-appellants but reduced the damages from Rs.87,980 to Rs. 43,558/-. The defendants have filed the present appeal. The respondent has filed cross-objection praying that the decree of the trial Court be restored and also praying that he be awarded interest from the date of filing of the suit till payment/deposit of the amount. The appeal was admitted on the following questions of law:- 1. Whether the learned Courts below have correctly applied the principle of ‘Maxim actio personalis moritur cum persona’? 2. Whether the learned Courts below are not required to dismiss the suit on the principle of “Damnum fatale”? 3. Whether the Courts below were right in decreeing the suit of the plaintiff by considering totally inadmissible documents like Ex.PW-8/B and Ext.PW-8/C.? I have heard Shri Anand Sharma, learned counsel for the defendants-appellants and Shri Gian Chand Gupta, learned Senior Counsel on behalf of the plaintiff-respondent. 4 The main contention raised on behalf of the appellant is that in view of the maxim “actio personalis moritur cum persona” after the death of Sita Ram the cause of action did not survive and the suit was bound to be dismissed. Shri Anand Sharma, learned counsel for the appellant has relied upon the judgement of the Andhra Pradesh High Court in G.Jayaprakash vs. The State of Andhra Pradesh and others, AIR 1977 Andhra Pradesh 20. In that case the plaintiff brought a suit against two doctors for damages on the ground of negligence committed by them during performance of an operation. One of the doctors died during the pendency of the suit. The Andhra Pradesh High Court held that the death of the doctor extinguished his liability for damages and the suit against him stood abated. In Kakumanu Pedasubhayya and another vs. Kakumanu Akkamma and another, AIR 1958 SC 1042, the Apex Court observed thus:- “15. It remains to consider one other argument advanced on behalf of the appellants. It was urged that the cause of action for a suit for partition by a minor was one personal to him and that on his death before hearing, the suit must abate on the principle of the maxim, actio personalis moritur cum persona. But that maxim has application only when the action is one for damages for a personal wrong, and as a suit for partition is a suit for property, the rule in question has no application to it.” 5 In Jogindra Kuer and others vs. Jagdish Singh and others, AIR 1964 Patna 548, a Division Bench of the Patna High Court held as follows:- “But so far the tort related or affected the property belonging to the plaintiff the maxim actio personalis moritur cum persona will not apply and the right to sue will survive to the legal representatives of the plaintiff.” In Official Liquidator, Supreme Bank Ltd. vs. P.A. Tendolkar (dead) by LRs and others, AIR 1973 SC 1104, the Apex Court clearly held that where the tortfeasor’s estate has benefited from the wrong done the maxim had no applicability. “29. The maxim actio personalis moritur cum persona, as pointed out in Winfield’s “Law of Tort (Eighth Edn.pp. 603- 605), was an invention of English Common Lawyers. It seemed to have resulted from the strong quasi criminal character of the action for trespass. Just like a prosecution for a criminal offence, the section for trespass, which was “the parent of much of our modern law of tort”, was held, by applying this maxim, to be incapable for surviving the death of the wrongdoer, and, in some cases, even of the party injured. The maxim, with its extensions, was criticized by Winfield and found to be “pregnant with a good deal more mischief than was ever born of it”. Whatever view one may take of the justice of the principle, it was clear that it would not be applicable to actions based on contract or where a tort feaser’s estate had benefited from a wrong done. Its application was generally 6 confined to actions for damages for defamation, seduction, inducing a spouse to remain apart from the other, and adultery.” It would be pertinent to mention that in India there is a statutory provision namely the Indian Succession Act which makes special reference to actions which can be continued for and against the legal heirs: Section 306 of the Indian Succession Act reads as follows:- “Demands and rights of action of, or against deceased survive to and against executor or administrator- All demands whatsoever and all right to prosecute or defend any action or special proceeding existing in favour of or against a person at the time of his decease, survive to and against his executors or administrators; except causes of action for defamation, assault, as defined in the Indian Penal Code, or other personal injuries not causing the death of the party; and except also cases where, after the death of the party, the relief sought could not be enjoyed or granting it would be nugatory.” This section lays down that all rights to prosecute or defend any action or special proceeding survive to and against his executors or administrators. The section clearly provides that other than causes of action for defamation and assault as defined in the Indian Penal Code, or other personal injuries not causing the death of the party can be continued for and against the deceased. 7 The Apex Court considered the scope of ambit of Section 306 in M.Veerappa vs. Evelyn Sequeira and others, (1988) 1 SCC 556, and held as follows:- “The words “other personal injuries not causing the death of the party” occurring in Section 306 of the Indian Succession Act do not mean injuries to the body alone but all injuries to a person other than those which cause death. The relevant words must be read ejusdem generis with the words “defamation and assault” and not with the word “assault” alone. Though Section 306 speaks only of executors and administrators the legal representatives stand on par with executors and administrators regarding their right to seek impleadment in order to continue the suit under Order 22 Rule 3 Civil Procedure Code.” It is thus clear that all actions except actions for defamation, assault or personal injuries do not survive. Though personal injury has been given a wider meaning by the Apex Court and has to be read ejusdem generis with both defamation and assault and the personal injuries may not be only physical in nature they must have some connection either with defamation or with assault. Injuries caused to the property are not personal injuries in that sense and therefore under the provisions of Section 306 of the Indian Succession Act and under Order 22 of the CPC they can be continued. In my view the maxim “actio personalis moritur cum persona” cannot be extended to the facts of the present case. Under common law, as a general rule, death of either party 8 extinguished any existing cause of action in tort by one against the other. This, however, had a historical connection with the fact that the English Law of tort was more often than not derived from actions under criminal law, such as, assault and battery. Actions under contract were normally not covered under the said principle and so too actions relating to property which had been appropriated by a deceased or added to his estate. The principle relied upon by the appellants was never made applicable to cases relating to property. In England to obviate the principle of Common Law, the Law Reform (Miscellaneous Provisions) Act, 1934 was passed which provided generally for survival of causes of action in tort. Winfield and Jolowicz in their treatise on Tort 12th Edition, page 658 have observed as follows:- “Survival of causes of action By section 1(1) of the Act, all causes of action subsisting against or vested in any person on his death, except causes of action for defamation, now survive against, or, as the case may be, for the benefit of his estate. The Act does not create a cause of action for death itself and has no bearing on the common law rule that no such cause of action exists. What it does is to provide for the survival of causes of action subsisting when the tortfeasor or the injured person dies.” Thereafter another Committee was constituted to consider the applicability of this principle to cases arising out of tort which Committee proposed that a cause of action even in case of 9 defamation should survive against the estate of the deceased and when a person defamed had started an action but died before the judgement his legal representatives should be entitled to carry on the action. Even in respect of person defamed who had died before instituting the action the representatives would be entitled to commence an action but only for an injunction or actual pecuniary loss. It was further observed that when a negligent manufacturer of some noxious substance dies before the ultimate consumer suffers damage from drinking it, the consumer can bring an action against the estate of the manufacturer. After the introduction of the Law Reform (Contributory Negligence) Act, 1945 which was made applicable to claims by and against the estate even when a tortfeasor dies in England an action for damage can be brought against the estate. In India Section 306 of the Indian Succession Act covers the field. Where damages are claimed for loss caused to the property by the action of the tortfeasor on his own property the legal heirs of the tortfeasor after his death would be liable to the extent of his estate since they have inherited the estate. From the judgements of the Apex Court it is obvious that in India the maxim has been confined to actions for defamation, seduction, adultery, etc. This principle has no applicability to the present case. In this case damage was caused to the property of the plaintiff by raising retaining wall to protect the property of the defendant. The defendant intended to add to the value of his property by making the retaining wall. Value of his property was enhanced. If while doing so he caused damage to the property of 10 the plaintiff the action for damages cannot be said to be a personal action but an action relating to property and therefore, the principle maxim “actio personalis moritur cum persona” has no applicability. Both the Courts below have come to a finding of fact that the damage caused to the property of the plaintiff was on account of the negligent act of the defendant. This is a pure question of fact which cannot be interfered in a regular second appeal. On going through the record, I find that the learned lower Appellate Court has misread the evidence while reducing the damages. The plaintiff had engaged PW-8 an Engineer to assess the damage. According to him, he prepared the plan Ext.PW-8/A showing the damage to the portion of the building belonging to the plaintiff. He prepared the estimate and assessed the damage at Rs. 45,058/- but enhanced the same by 60% on account of increase in the prices of materials. He also added another some of Rs.13,256/- for re-erecting the foundation and plinth and Rs.9,942 for laying down the water pipes for sanitary and water works. He added another Rs.1000/- for repairing the kitchen and thus assessed the total loss at Rs.86,480/-. It would be pertinent to mention that there is virtually no cross-examination to this witness with regard to the estimate prepared by him. No question has been put to him in cross-examination that the calculations made by him are incorrect or the rates applied by him are wrong. The only suggestion made to him is that he has prepared a wrong and incorrect estimate to help the petitioner. The learned lower appellate Court held that the claimant was entitled only to a sum of 11 Rs. 45,058/- assessed for the loss and Rs.1,000/- for repair of the kitchen. He deducted Rs.4000/- on account of the material which could be reused and assessed Rs.1500/- as damage caused to the fruit bearing trees. He assessed the total loss of Rs.45,058/-. The only reason given for not granting the enhancement of 60% due to increase in material and labour rates is that it has not been mentioned in the report as to how this amount was calculated. He on similar grounds has rejected the claim for a sum of Rs.13,256/- for raising the foundation and plinth and Rs.9,942/- for water supply and sanitary works. The learned lower Appellate Court fell into an error in coming to the conclusion that the plaintiff is entitled to damages only for restoration of his damaged property and not for reconstruction. When property is damaged it will have to be reconstructed. The damage caused to the owner of the property is not only the value of the property damaged but he must be reimbursed for reconstruction of the same though on old lines. His property must be put back in the same position as it was prior to the damage. He, therefore, cannot be denied the costs of reconstruction of the damaged property. The reports Ext.PW-8/B and Ext.PW-8/C give details of the measurement as well as the details of reconstructing the building. No question was asked to the expert when he appeared in the witness box as to why he has granted 60% enhancement on certain items due to increase in the rate of material and labour charges. If such a question had been put to the witness he might have explained the same. Since no such question was put to the report of the expert cannot be 12 discarded. Therefore, the plaintiff is entitled to the entire amount as assessed by the PW-8. The suit in question was filed as far back as 1.9.1993. When legal proceedings go on for years on end there is no reason to deny interest to the successful party. In the facts and circumstances of the case, I am of the considered view that the plaintiff is entitled to interest @ 6% per annum on the amount of compensation from the date of filing of the suit till payment/deposit of the decretal amount. In view of the above discussion the appeal is dismissed and the cross-objections are allowed. A decree for recovery of Rs.87,980/- is passed in favour of the plaintiff-respondent and against the defendants-appellants alongwith interest @ 6% per annum w.e.f. 1.9.1993, the date of filing of the civil suit till payment/deposit of the amount. It is, however, made clear that the defendants shall be liable to pay the decretal amount only out of estate of the deceased Sita Ram inherited by them. The appeal is disposed of in the aforesaid terms. No order as to costs. 24th December, 2009 ( Deepak Gupta ) ™ Judge.