The right of private defense is a permissible defense in a civil suit for damages on torts, but the person claiming self-defense must show that the force used was necessary and proportionate to the threat faced.

D. P. MOHAPATRA, J.

( 1 ) THE second appeal involves an interesting question of law as to whether the general exceptions provided under the Penal Code would be applicable in a suit for damages on torts, indeed, at the time of admission of the appeal this question was formulated by the Court for examination.

( 2 ) THE facts leading to this appeal may be shortly stated thus; Appellant, Debendra Bhoi, filed the suit (M. S. No. 30 of 1973) before the Munsif, Bargarh claiming Rs. 500/- towards damages from the respondents Meghu Bhoi and Dhanei Bhoi on the allegations that on 26-7-73, the latter assaulted him causing injuries, as a result of which he was treated in the Government Central Hospital, Bargarh, for 11 days and suffered physical and mental pain and financial loss. Respondent 2, Dhanei Bhoi, is the son of respondent 1, Meghu Bhoi, it was the further case of the appellant that land described in the Schedule 'a' to the plaint situated in Mouza Sarsara belonged to him. The respondents had land adjoining the appellant's land to its north and south. According to the appellant the respondents while preparing their land for transplantation of paddy, had scrapped the Northern and Southern ridges of the Schedule 'a' land in spite of protest of the appellant. On 26-7-73 when the appellant was talking with some of the local gentries to resolve the dispute and while the latter were enquiring the facts from both the parties, the respondents got enraged and all on a sudden assaulted the appellant by a stick, resulting in bleeding injuries on his person for which the appellant had to undergo treatment. On these allegations, he claimed Rs. 200/- towards general damages for mental pain and humiliation and Rs. 300/- as special damages for purchase of medicine, loss of work for 11 days, conveyance charges to and fro the hospital and other expenses for treatment etc.

( 3 ) THE respondents in their written statement did not controvert the fact that an incident took place between the parties on 26-7-1973 when the respondent 1 Meghu Bhoi was going to the land with his plough along with Chakra Bhoi. On the way, the appellant protested by making a false allegation that he (defendant 1) had cut the ridges of the land of the appellant. When respondent 1 protested to this allegation, the appellant raised the spade in his hand to assault him. At that time the second respondent reached the spot and in order to protest his father, assaulted the appellant and with the assistance of Chakra Bhoi and others snatched away the spade from his hand. The respondents went on to state that respondent 1 did not assault the appellant and the incident did not take place on the land of the appellant. On these averments they contested the claim for damages.

( 4 ) ON the aforesaid pleadings the trial Court framed several issues, of which issues Nos. 3,4 and 5 are relevant. They are quoted hereunder. " (3) was there any occurrence as alleged in the plaint on 26-7-1973? (4) Did the plaintiff sustain any mental and physical injury for the said occurrence? (5) Did any assault take place on Mundatal and Khaliamal land?"on assessment of the materials on record, the trial Court accepted the case of the appellant that in course of the incident on 26-7-1973, he was assaulted by respondent 2 due to which he suffered, physical and mental pain. On consideration of the materials on record he negatived the plea of the respondents that the assault by respondent 2 was taken recourse to for protecting his father, respondent 1. The trial Court held that in the facts and circumstances of the case use of force by respondent 2 on the appellant, was unnecessary. On these findings, the court decreed the suit in part awarding Rs. 200/-towards general damages to be paid by the respondents to the appellant.

( 5 ) ON appeal by the respondents, the lower appellate Court reversed the decision of the trial Court and dismissed the suit holding that respondent 2 was protected by his right of priva