IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RFA No.157 of 2000. Reserved on:08.01.2008 Date of Decision:February 25, 2008 Union of India & another. …Appellants. Versus State of H.P. & Ors. ...Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting?1 No For the appellants : Mr B.B.Vaid, Advocate. For the respondents : Mr M.L.Chauhan, Addl.A.G., for respondent No.1. Mr.Balwant Kukreja, Advocate for respondents No.2 and 3. Kuldip Singh, Judge. This appeal has been directed against the judgment and decree dated 3.4.1999 passed by learned Additional District Judge, Sirmaur District at Nahan, in Civil Suit No.3-N/1 of 1997 dismissing the suit of appellants / plaintiffs for recovery of Rs.3,47,474. 2. The facts, in brief, are that appellants filed a suit for recovery of Rs.3,47,474 against the respondents for damaging the underground cable which was laid by appellants at Paonta Sahib, District Sirmaur. It 1 Whether reporters of Local Papers are allowed to see the Judgment? Yes …2… has been alleged that appellants have provided 100 pairs underground cable for a distance of 2 Kilometers and thereafter 50 pairs each up to Inter National Cylinders at Paonta Sahib and 50 pairs more were provided up to Himalaya Tower having DP Nos.9306, 9307, 9308, 9309 and 9310 at Pillar No.93 in the industrial township at Paonta Sahib. The cable was laid with prior permission from Himachal Pradesh Public Works Department. 3. The respondents laid underground water pipeline exactly above the underground cable of appellants without verifying the existence of the underground cable. The respondents had done digging work on the cable points leading to the DP Numbers mentioned above and due to this operation, intensive damage was caused to the underground cable resultantly there was loss of cable at certain points and at some places the cable was completely damaged and was cut due to laying of the water pipes, about 50 pairs on DP numbers were lost up to the point of International Cylinders at Paonta Sahib and damage to 50 pairs as a whole. 4. The appellants were not informed by respondents for laying down the water pipeline above the underground cable of the appellants. The respondents negligently laid the water pipeline causing damage to the underground cable of the respondents. The appellants had correspondence with respondent No.2 regarding the damage caused to the underground cable of the appellants. A notice under Section 80 C.P.C. was also served but to no effect and ultimately the appellants filed suit for recovery of Rs.3,47,474 on account of damage done to the underground cable of appellants by respondents. …3… 5. The suit was contested by respondent No.1 by filing written statement. It has been submitted that respondent No.2 has executed the work of laying the water pipeline on behalf of the Industries Department on deposit work basis in Industrial Area Paonta Sahib for which the funds were released to respondent No.2 through General Manager, District Industries Centre, Nahan. The defence of respondent No.1 in short is that work in question was executed by respondent No.2, therefore, respondent No.1 prayed for dismissal of the suit. 6. The respondents No.2 and 3 have filed separate joint written statement and contested the suit by taking preliminary objections of maintainability on the ground that appellants have no locus standi to file the suit, mis-joinder and non-joinder of parties and causes of action. Anil Kumar Vashisht, Contractor, who executed the work of laying down the water pipeline, is a necessary party. The water pipeline was laid down from 17.4.1989 to 10.7.1989 and, therefore, suit is time barred. There is no enforceable cause of action, pleas of estoppel and suit being false and frivolous have also been taken. On merits, it has been pleaded that competency of Telecom District Manager to file the suit is to be proved by appellants. The water pipe was laid from 17.4.1989 to 10.7.1989 and during this period appellants never reported any alleged damage to the underground cable. The factum of damage caused to the underground cable of the appellants has been specifically denied. The appellants had correspondence with respondents No.2 and 3 which was promptly replied. No complaint was ever made or reported by Telecom staff till November 1994. The damage to the cable of appellants by respondents No.2 land 3 and the amount of damage has been denied. The meeting …4… dated 24.5.1996 was not denied but it has been pleaded that the minutes of the meeting were drawn by Telecom Department. The respondents No.2 and 3 prayed for dismissal of the suit with special costs. 7. The appellants filed replication to the written statement of respondents No.2 and 3 and reiterated their case set up in the plaint by denying the defence advanced by respondents No.2 and 3. It is significant to note here that neither in the plaint nor in the replication, the appellants have specifically pleaded when they laid underground cable nor they have specifically denied the assertion of respondents No.2 and 3 that the water pipeline was laid down from 17.4.1989 to 10.7.1989. 8. On the basis of pleadings of the parties, the following issues were framed:- i) Whether the plaintiffs are entitled to recover the suit amount from the defendants, as alleged? OPP ii) Whether the suit is not maintainable, as alleged? OPD-2 & 3. iii) Whether the suit is bad on account of non-joinder and cause of action, as alleged? OPD-2 & 3. iv) Whether the plaintiffs have no enforceable cause of action, as alleged? OPD-2 & 3. v) Whether the suit is barred by time, as alleged? OPD-2 & 3. …5… vi) Whether the plaintiffs are estopped by their own acts and conduct, to file the suit, as alleged? OPD-2 & 3. vii) Relief. The learned Additional District Judge held that suit is time barred and on merits also dismissed the claim of the appellants vide judgment and decree dated 3.4.1999. Hence, this appeal. 9. I have heard Mr.B.B.Vaid, learned counsel for the appellants, Mr.M.L.Chauhan, learned Additional Advocate General, for respondent No.1 and Mr.Balwant Kukreja, learned counsel for respondents No.2 and 3 and have gone through the record. Mr.Vaid has submitted that learned Additional District Judge has erred in returning the finding that suit is governed by Article 91(b) of the Limitation Act, 1963. On the contrary, according to him, the suit is governed by Article 112 and is, therefore, within limitation. On merits, he has submitted that learned Additional District Judge has mis-interpreted and mis-construed the evidence on record. The appellants have proved damage to their underground cable by respondents. The appellants are entitled to decree of Rs.3,47,474 along with interest as prayed. Mr.Kukreja has supported the impugned judgment and decree and has submitted that appellants have miserably failed to prove damage to their underground cable by the water pipe line laid by respondents No.2 and 3. He has submitted that respondents No.2 and 3 through their contractor laid water pipeline from 17.4.1989 to 10.7.1989 whereas according to appellants the damage to the cable was detected after 1990-91. Mr.M.L.Chauhan, learned Additional Advocate General, has adopted the same line of …6… reasoning as advanced by Mr.Kukreja but additionally he has submitted that the water pipe line was laid by respondents No.2 and 3 and, therefore, suit of the appellants against respondent No.1 is not maintainable. 10. PW-1 Nirdosh Kumar Modgil, Sub Divisional Engineer, Planning, TDM Office, Solan, has stated that he has been working as such since January 1994. He has stated that 2 Kilometers underground cable from Taruwala to Paonta Sahib with DPs from 9306 to 9310 was damaged due to laying of water pipe line. The appellants have suffered loss of Rs.3,47,474. In 1994 their committee went to assess the loss and report dated 25.10.1994 Ext.PW-1/A was prepared which is signed by him. A demand note was sent to respondent No.2 in 1994. A meeting was held on 24.5.1996 and the minutes of the meeting were drawn vide Ext.PW-1/B. No payment was made to the appellants on account of loss suffered by them. In cross examination, he has stated that he is not aware from which specific place to which specific place the cable was laid. He has denied that water pipe line was laid by Anil Kumar Vashisht from 17.4.1989 to 10.7.1989. He has admitted that minutes Ext.PW-1/B have not been signed on behalf of respondent No.2. He has also admitted that appellants had correspondence first time with respondents No.2 and 3 in the year 1994. He has also admitted that for the first time in the year 1991 the department has received the information regarding damage of DPs. He has stated that the department has not obtained expert report regarding the damage to the cable. 11. PW-2 A.K.Bhatt, SDO Telegraphs, Paonta Sahib, has placed on record Ext.PW-2/A, Ext.PW-2/B, estimate and recovery letter Ext.PW- …7… 2/C, intimation letter Ext.PW-2/D. In cross examination, he has stated that he does not know whether the estimates are correct and on what basis these were prepared. He has also stated that cable can damage due to so many factors. PW-3 V.C.Sarin, J.E., IPH, Sub Division, Paonta Sahib, has proved Ext.PW-3/A, demand note Ext.PW-3/B, Ext.PW-3/C and Ext.PW-3/D. 12. PW-4 Sandeep Diwan, Deputy General Manager Development, Himachal Telecom Circle, Shimla has stated that he was posted at Solan from May 1994 to April 1997 as Divisional Engineer Planning and Administration. The revenue District Sirmaur comes in Solan Telecom District. At Taruwala road nearly 2 Kilometers stretch of underground telephone cable having 100 pairs was damaged. This cable was laid in the year 1988 and was damaged from 1989 to 1991. The underground cable was damaged due to cutting. Respondent No.2 during this period laid underground water pipe on this route. The appellants came to know this fact in September / October 1994. The appellants have suffered loss of Rs.3,47,000 due to the acts of respondent No.2. He has placed on record Ext.PW-4/A to Ext.PW-4/D. In cross examination, he has stated that he was SDO Jallandhar from 1989 to 1991 and he does not have personal knowledge regarding the case. He did not deny the suggestion that the contractor laid down the water pipeline from 17.4.1989 to 10.7.1989. He has stated that at Paonta Sahib the appellants have permanent staff who check overhead line and underground cables periodically. The appellants came to know the defect in the cable first time in January 1991. …8… 13. PW-5 Brij Mohan Verma, Government Contactor Telecommunication, Solan has stated that he has laid underground cable at Sataun Road from Taruwala to National point from 28.11.1991 to 4.12.1991. PW-6 S.K.Chhabra, JTO, Telecom Department, Paonta Sahib, has stated that he joined at Paonta Sahib in August 1990 and in October 1994 a committee came from Solan. He prepared justification Ext.PW-6/A, copy of calculations Ext.PW-6/B, site plan Ext.PW-6/C in which damaged portion has been shown, new cable was laid in the damaged portion through PW-5. In cross examination, he has stated that water pipes were laid before he joined. 14. DW-1 Chain Singh, Deputy Manager, HPSIDC, Shimla has stated that he is working in the Corporation since 1977. In the year 1989 work of water supply pipeline from tube well Taruwala to Industrial Area Paonta Sahib was awarded to Anil Kumar Vashisht contractor vide award letter dated 25.3.1989 / 27.3.1989 Ext.D-1. The Corporation at no stage was informed that the telecom cable of the appellants has been damaged. The first letter in this respect was received by the Corporation in November 1994. Thereafter, appellants had written letters Ext.D-3, Ext.D-4 which were replied vide Ext.D-5 to Ext.D-9. The Corporation has done no work of laying water pipe line after 10.7.1989 in Industrial Area Paonta Sahib. In cross examination, he has denied that the appellants have suffered a loss of Rs.3,47,474 due to the acts of the Corporation. 15. DW-2 Anil Kumar Vashisht has stated that he laid down pipe line for Industrial Area Paonta Sahib from 17.4.1989 to 10.7.1989. He applied for extension of time vide Ext.D-2. At the time of laying down of the pipe line, no telephone cable was seen nor any telephone cable was …9… damaged during digging. The telecom staff had been visiting the site and they never made any complaint regarding damage to their cable. The work of laying of pipe line was being supervised by J.E. Onkar Singh and S.D.O. Gupta. In cross examination, he has denied that there was underground cable of the appellants where the pipe line was laid by respondent No.2. He has denied that DPs No.9306 to 9310 of the cable of the appellants were damaged. 16. DW-3 Onkar Singh Minhas, J.E., HPSIDC, has stated that he was supervising the work of laying of pipe which was laid by Anil Kumar Vashisht, DW-2. At the time of laying of pipe no underground cable of telecom department was noticed nor any cable of telecom department was damaged. The work of laying pipe was started on 17.4.1989 and was completed on 10.7.1989. In cross examination, he has stated that he has filled in MB up to 10.7.1989 and entry of security release after 10.7.1989 was also made by him. 17. DW-4 A.C.Gupta, SDO (Retd.) has stated that he was posted at Solan as Assistant Engineer from 1989 to 1990. Their department had allotted laying of water pipeline to A.K.Vashisht contractor. This work was started on 17th April, 1989 and was completed on 10th July, 1989. He had been supervising the work of laying of water pipe line. The J.E. was regularly visiting the site. He had not seen any cable on the route where the pipe line was laid. 18. The appellants in the plaint have not specifically pleaded when the cable was laid by them nor they have pleaded when respondents laid water pipe line which allegedly damaged their cable. DW-1 Chain Singh has stated that Anil Kumar Vashisht, Contractor, was …10… awarded work for laying water pipe line vide award letter dated 25.3.1989 / 27.3.1989 Ext.D-1. DW-2 Anil Kumar Vashisht has stated that he laid the water pipe line from 17.4.1989 to 10.7.1989. DW-3 Onkar Singh Minhas has stated that he supervised the work of laying of pipe line which was laid by DW-2 Anil Kumar Vashisht. DW-4 A.C. Gupta has stated that he had been supervising the work of laying the water pipe line which work was allotted to A.K. Vashisht, Contractor. DW-2, DW-3 and DW-4 have stated that work of laying water pipe line was started on 17.4.1989 and was completed on 10.7.1989. DW-2 and DW-3 have stated that at the time of laying of water pipe line no cable of the telecom department was noticed nor any cable of the telecom department was damaged. DW-4 has also stated that he had not seen any cable on route where the pipe line was laid. PW-6 S.K.Chhabra has stated that he joined at Paonta Sahib in August, 1990 and water pipe line was laid before he joined. Therefore, it has been proved on record that the water pipe line was laid by respondent No.2 from 17.4.1989 to 10.7.1989. PW- 4 Sandeep Diwan has stated that cable was laid in the year 1988. He has also stated that appellants have come to know the defect in the cable first time in January 1991. PW-4 has stated that underground cable was damaged due to cutting. In other words, the case of the appellants is that while laying water pipe line the respondent No.2 had cut and damaged their cable at many places. It is not the case of the appellants that the cable was damaged due to leakage of water. Their specific case is that damage to the cable is due to cutting and damage of the cable at many places when respondent No.2 laid the water pipe line and dug up the route for placing the water pipe line. It has come on record that …11… Telecommunication Department had its permanent staff at Paonta Sahib and PW-4 has stated that their staff used to check over head lines and underground cables periodically. The staff of Telecommunication Department never pointed out any cutting and damage to the cable when the process of laying of water pipe line from 17.4.1989 to 10.7.1989 was going on. The water pipe line was laid by respondent No.2 from 17.4.1989 to 10.7.1989, therefore, damage to the cable during this period should result snapping of communication on lines served by the cable which ought to have been noticed by the appellants immediately, but there is nothing on record to show that the communication system of the appellants on the lines served by the cable was disrupted from 17.4.1989 to 10.7.1989 when the water pipe line was laid by respondent No.2. The department noticed damage to the cable in January 1991 more than 16 months after the laying of the water pipe line and had first correspondence with respondent No.2 to this effect in the year 1994. The respondents have suggested to some of the witnesses of appellants that Public Works Department as well as Electricity Board in routine do digging of the road, similarly many persons also dug up the road for taking water connections to their shops and residential buildings. It is quite possible that underground cable of the appellants might have been damaged when digging of the road was done by such persons etc. The damage to the cable has been noticed by the appellants many months after the laying of water pipe line by respondents. The appellants have failed to connect the alleged damage to their cable with the digging and laying of water pipe line by respondent No.2. …12… 19. The appellants have relied on report Ext.PW-1/A prepared by PW-1 and minutes of the meeting dated 24.5.1996 Ext.PW-1/B. The report Ext.PW-1/A was prepared on 25.10.1994 whereas water pipe line was laid in the year 1989, as noticed above. The report Ext.PW-1/A has not been prepared immediately after the damage to the cable was noticed by appellants in January 1991, therefore, report Ext.PW-1/A is of no help to the appellants. There is no evidence on record that underground cable route was not disturbed by any other agency after 10.7.1989 when respondent No.2 completed the work of laying water pipe line. The minutes of the meeting Ext.PW-1/B are also of no help to the appellants as respondent No.2 has not admitted the contents of the minutes nor anyone on behalf of respondent No.2 has signed the minutes Ext.PW-1/B. The appellants have led no evidence to pin point as to when their cable was damaged. The appellants have not produced the person / contractor who laid the cable in the year 1988. Once the appellants have failed to prove that their cable was cut, damaged by respondent No.2 or any other respondent, therefore, any amount spent by the appellants for repairing or replacing the damaged cable cannot be recovered by appellants from respondents. The appellants are not entitled to the suit amount. The learned Additional District Judge has rightly appreciated the material on record. The appellants have failed to make out any case for interference regarding the merits of the case. 20. There is substance in the submission of learned counsel for the appellants that the finding of the learned Additional District Judge on the point of limitation is erroneous. No doubt, Article 91(b) prescribes 3 years limitation for filing the suit for injuring specific moveable property …13… and the limitation will start from the date when the property is wrongfully injured. In the present case, the case of the appellants is that they first time noticed damage to their cable in January 1991. The appellants filed the suit on 19.2.1997. The learned Additional District Judge has failed to appreciate that the suit was filed by Union of India and Divisional Engineer (Admn.). In other words, basically the suit was filed by Union of India. The limitation for any suit filed by Central Government is 30 years under Article 112 of the Limitation Act, 1963. Therefore, from any angle the suit is within limitation and the learned Additional District Judge has wrongly held the suit is time barred. But the reversal of finding on the point of limitation does not affect the merits of the case, as held above. 21. No other point was urged. 22. The result of the above discussion, appeal is dismissed with no order as to costs. February 25, 2008 ( Kuldip Singh ), J. (soni)