Hon'ble JAIN, J.—The defendant is in Second Appeal against the judgment and decree of both the Courts below whereby, suit of the plaintiff for recovery by way of damages, to the tune of Rs. 62,500/- along with interest @ 8% per annum has been decreed from the date of occurrence i.e. 28.1.2001 till the date of realization, against defendant No.1 and 2 jointly and severally.

2. The case set up by the plaintiff is that on 28.1.2001 at 10.30 PM defendant No.1, while driving tempo Tata 407 bearing No. HR. 46A/5715, under the employment of defendant No. 2, while coming from the direction of Bahadurgarh in a rash and negligent manner dashed against the shop-cum-kothra of the plaintiff and damaged it completely, which caused loss to him to the tune of Rs. 62,500/-. One FIR No. 38 dated 29.1.2001, under Sections 279 & 336 IPC, was also registered at the instance of plaintiff against defendant No.1 at Police Station, City Bahadurgarh. It was alleged that defendant gave an assurance to indemnify the plaintiff of the damage, which was caused because of his negligence, but the assurance was not fulfilled which led to the filing of the suit. On notice, defendant No. 2, vide order dated 24.10.2002 was proceeded against ex parte whereas vide order dated 22.1.2003, name of defendant No. 3, was deleted from the array of the suit. Defendant No. 1, in his written statement alleged that the story of the plaintiff is concocted and he is not responsible for any damages.

3. After the total denial of the defendant, the plaintiff filed replication reiterating the stand taken in the plaint. On the pleadings of the parties, following issues were struck:

"1. Whether the plaintiff is entitled for recovery/damages of Rs. 62500/- alongwith cost and interest? OPP

2. Whether the suit of the plaintiff is not maintainable in the present form? OPC

3. Whether the plaintiff has no locus standi to file the present suit? OPD

4. Whether the suit of the plaintiff is bad for non joinder and mis-joinder of necessary parties? OPD

5. Whether the plaintiff has no cause of action to file the present suit? OPC

6. Relief."

4. Learned Trial Court, after taking into consideration, oral as well as documentary evidence, decreed the suit on 27.5.2004.

5. Aggrieved against it, defendant No. 1 preferred an appeal under Section 96 of the Code of Civil Procedure, 1908 (for short `CPC') in which objection was taken about the jurisdiction of the Civil Court on the ground that as per Section 175 of the Motor Vehicles Act, 1988 (for short `the Act') the Civil Court does not have the jurisdiction to decide the lis either for the injury, death or damage to the property as the jurisdiction of the Civil Court is specifically barred.

6. The learned Additional District Judge, Jhajjar relied upon a decision of the Jammu and Kashmir High Court reported as "National Insurance Company vs. Union of India and others", AIR 1989 J & K 56, to hold that the plaintiff has remedy either to prefer him claim before the Civil Court or before the Motor Accident and Claims Tribunal (for short `the Tribunal') and following the said judgment, the appeal was dismissed.

7. Unsuccessful but unfazed, defendant, has come in Second Appeal, in which the question of law has been framed "as to whether the Civil Court has got the jurisdiction to entertain the suit for damages caused to the property in a vehicular accident?"

8. In order to substantiate his argument, learned counsel for the appellant has referred to some provisions of the Act, namely, Section 165, 166 and 175. He also submits that judgment relied upon by the learned First Appellate Court is not applicable to the facts and circumstances of the present case as it pertains to Section 110 of the Motor Vehicles Act, 1939 in which there was an amendment by Act No. XVI of 1969 by which a proviso was added to Section 110, which reads that "provided that where such claim includes a claim for compensation in respect of damage to property exceeding rupees two thousand, the claimant

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