An appellate court cannot suo motu introduce a new defence of 'act of God' that was not pleaded before the trial court, and where negligence is established through the failure to maintain infrastructure that causes predictable damage, the liability for damages remains upon the controlling authority.

JUDGMENT

1. The present Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter, referred to as “the Code”) by the appellant – original plaintiff challenging the judgment and decree dated 21.08.2006 passed by learned Presiding Officer, Fast Track Court No. 3, Surendranagar in Regular Civil Appeal No. 19 of 2004. The learned Presiding Officer, Fast Track Court No. 3, Surendranagar by allowing the appeal of the present respondents, who were original defendants, has quashed and set aside the judgment and decree dated 27.10.2004 passed by the learned 2nd Joint Civil Judge (S.D.), Surendranagar in Special Civil Suit No. 138 of 2000.

For the sake of convenience, parties are referred to as per their original status in the suit proceedings.

2. Heard learned advocate Mr. A.B. Gateshaniya for the appellant and learned advocate Ms. R.V. Acharya for respondent No. 1. Though served, none appeared for respondent No. 2.

The present Second Appeal has been admitted by the Co-ordinate Bench of this Court vide order dated 05.12.2006 on the following substantial questions of law:

"1. Whether the first appellate Court was justified in ignoring the panchnama prepared by the Talat i-cum-Mantri simply on the ground that he did not possess proper permission from the Mamlatdar and that whether such panchnama prepared by a private party even otherwise could be taken to be a piece of evidence to show that the canal had broken and had caused loses to the plaintiff?

2. Whether on the facts and in the circumstances of the case, the first appellate Court was justified in holding that if because of the financial stringency the respondents could not make a Pakka canal, then no negligence can be found with their act or whether the respondents were required to prove to the satisfaction of the Court that they had taken all due care to see that the canal does not break?"

3. Brief facts of the case are as under:

3.1 The plaintiff had filed a suit for damages to the tune of Rs.55,000/- with interest at the rate of 18% per annum against the defendants – respondents herein as, between 13.07.2000 to 15.07.2000, due to heavy rainfall, the canal which was passing nearby the field of the plaintiff, situated at Survey No. 878 / 6 of Village – Lakhtar, District – Surendranagar, had collapsed. Resultantly, rain water entered the field of the plaintiff which damaged the cotton crop as well as the field. Following issues were framed by the learned Trial Court at Exhibit – 10 in the suit:

“1. Whether the plaintiff proves his suit claime?

2. Whether the plaintiff is entitled to get interest?

3. Whether the plaintiff is entitled to get the reliefs as prayed?

4. What order and decree?”

The learned Trial Court, after recording the oral depositions of the plaintiff and his witnesses as well as oral depositions of the defendants, partly decreed the suit and directed the defendants to pay an amount of Rs.12,000/- with interest at the rate of 9% per annum from the date of the suit till realization. The other claims of plaintiff for the damage to the field came to be rejected. The defendants, being aggrieved and dissatisfied with the said judgment and decree, filed Regular Civil Appeal No. 19 of 2004 before the learned Presiding Officer, Fast Track Court No. 3, Surendranagar.

The plaintiff also filed cross-objections at Exhibit – 11 and prayed for the decree of Rs.55,000/- against the defendants. After hearing the parties, the learned Presiding Officer, Fast Track Court No. 3, Surendranagar allowed the appeal of the defendants by quashing and setting aside the judgment and decree