1971 Supreme(Pat) 140

PATNA HIGH COURT
Shambhu Prasad Singh and Shiveshwar Prasad Sinha JJ.
Indu Bhushan Chakravarty
Versus
Hareram Narayan Deo
Appeal from Original Decree No. 458 of 1964 ;
Decided On : OCTOBER 09, 1971

The milder rule of awarding damages would apply to the case where the wrongful working has not been done with a guilty or negligent mind, or sinister intention.

Headnote:

ORDER 1 RULE 8 OF THE CODE OF CIVIL PROCEDURE - REPRESENTATIVE DECREE - BUILDING STONES - LEASE - INTERPRETATION - SUIT FOR DAMAGES - LIMITATION - AMENDMENT OF PLAINT - NOTICE UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE - AGREEMENT - ADMISSION - MEASURE OF DAMAGES - MILDER RULE - DEDUCTIONS - JOINT TORTFEASORS - LIABILITY.

Fact of the Case:

The plaintiff filed a suit under Order 1, Rule 8 of the Code of Civil Procedure seeking a representative decree against the defendants and other permit holders from defendant No. 3, that the plaintiff is exclusively entitled to all the materials, namely boulders, ballast, gravels, morrums, lime-stones and other building stones, open and unopen, lying in or upon any land in 68 villages mentioned in Schedule A to the plaint and that those materials are the exclusive properties of the plaintiff. He further sought a permanent injunction restraining the defendants, their agents, servants and workmen, from digging, quarrying, collecting and removing gravels or any other building stones from any part of 68 villages and also restraining defendant No. 3 from issuing permits or granting permission to other defendants or any one else for working, digging or getting any gravels etc., from those villages.

Finding of the Court:

The court held that the appellant was entitled to a decree for damages in respect of 32000 Cft. of gravels at the rate of Rs. 8/-per 100 Cft. He was also entitled to his costs of the court below proportionate to his success against all the defendants. He was entitled to his costs of this Court as well against major defendants appearing in and contesting the appeal.

Issues: 1. Whether the appellant had title with regard to the stones mentioned in 68 villages covered by the lease of 1949? 2. Whether any part of the claim in the suit is barred by limitation? 3. Whether the agreement (Ext. 1 (a)) was binding on the defendants? 4. What was the amount of damages for which a decree could be passed in favour of the appellant? 5. Which rule, harsher or milder, had to be applied to the facts of the case in determining the quantum of damages? 6. Whether defendant No. 3 issued permits bona fide under the belief that he was entitled to issue those permits? 7. What was the price of gravels during the relevant time? 8. What deductions were to be allowed to the defendants in assessing the damages? 9. To what extent were defendants 3 and 4 personally liable?

Ratio Decidendi: 1. The court held that the appellant had title to the property in suit and could maintain the suit as the lease in his favour was recognised by the State of Bihar which accepted royalty from him from the year 1951. 2. The court held that the question of limitation with regard to the claim for damages over Rs. 5760/- would have to be decided with reference to the date of filing of the plaint itself and not with reference to the date of the amendment. 3. The court held that the agreement (Ext. 1 (a)) was not binding on the defendants as it was executed on the understanding that the suit would be compromised and defendant no. 2 would be set free and that he executed the agreement without understanding its contents. 4. The court held that the appellant was entitled to damages only in respect of that quantity of gravels which, has been admitted by the defendants. 5. The court held that the milder rule ought to apply to the facts of the case as defendant No. 3 had a decree in his favour and, therefore, he cannot be said to have acted not bona fide in granting permits. 6. The court held that defendant No. 3 issued permits bona fide under the belief that he was entitled to issue those permits. 7. The court held that the price of gravels during the relevant time was Rs. 18/- per 100 Cft. 8. The court held that the defendants were entitled to a deduction at the rate of Rs. 10.00 per 100 Cft. only and not at the rate of Rs. 13/8/- per 100 Cft. as found by the court below. 9. The court held that defendant No. 3 being a joint tortfeasor is also liable for damages to the same extent as other defendants are liable.

Final Decision: The appeal was allowed in part and the decree of the court below was modified. The appellant was entitled to a decree for damages in respect of 32000 Cft. of gravels at the rate of Rs. 8/-per 100 Cft. He was also entitled to his costs of the court below proportionate to his success against all the defendants. He was entitled to his costs of this Court as well against major defendants appearing in and contesting the appeal.