Karnataka High Court
Sri. M. J. Srinivasa vs Sri. H. Bhanuvarma on 21 February, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
RSA NO.880/2017
BETWEEN:
SRI. M. J. SRINIVASA
S/O. LATE SRI. M.N. JANARDHANA,
AGED ABOUT 63 YEARS,
R/AT NO.89, EAT STREET,
BASAVANAGUDI,
BENGALURU-560 004. ... APPELLANT
(BY SHRI. G.B.NANDISH GOWDA, ADV. FOR
SHRI. R B SADASIVAPPA, ADV.)
AND:
1.SRI. H. BHANUVARMA
S/O. LATE SRI. M. G. HANUMANTHAPA,
AGED ABOUT 67 YEARS,
2.SRI. H. RAMESH
S/O. LATE SRI. M. G. HANUMANTHAPPA,
AGED ABOUT 68 YEARS,
3.SRI. H. VASUDEV
S/O. LATE SRI. M. G. HANUMANTHAPPA,
AGED ABOUT 69 YEARS,
ALL ARE R/AT NO. 1074,
K.T. STREET, MANDI MOHALLA,
MYSURU - 570001. ... RESPONDENTS
2
RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 10.1.2017 PASSED IN RA
NO.799/2016 ON THE FILE OF THE III ADDL. DISTRICT
JUDGE, MYSURU, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
30.10.2015 PASSED IN O.S NO.218/2013 ON THE FILE OF
THE III ADDL. I CIVIL JUDGE AND JMFC., MYSORE ETC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The defendant in O.S.No.218/2013 has preferred this second appeal assailing judgment and decree passed in R.A.No.799/2016 (R.A.No.36/2016) dated 10.1.2017 confirming the judgment and decree passed by the III Additional Civil Judge and JMFC, Mysore in O.S.No.218/2013 dated 30.10.2015.
2. For the sake of convenience, the parties herein shall be referred to, in terms of their status before the trial court.
3. The respondents/plaintiffs filed the suit against the defendant seeking damages of Rs.2,40,000/- with interest at 18% per annum from the date of the suit till 3 realization and for the relief of mandatory injunction directing the defendant not to demolish the northern wall of his property and not to cause obstruction to the passage in any manner.
4. The suit schedule property is a house property bearing No.1074, situated at K.T. Street, Mandi Mohalla, Mysore, measuring 62 feet x 38 feet. According to the plaintiffs, the defendant is the absolute owner of property bearing No.1072, which is over 80 years old. At the time of purchase of the property by the defendant, there were tenants in the said building. In order to get the tenants vacated, the defendant did not repair his building. As a result, the building was in a dilapidated condition.
5. According to the plaintiffs, they are absolute owners in possession of the suit schedule property which is situated on the eastern side of the defendant's property. As defendant's property was in a dilapidated condition, several requests were made by the plaintiffs to the defendant to demolish his property. As the defendant did 4 not adhere to their request, plaintiffs lodged a complaint before the Mysore City Corporation. The Corporation gave notice to the tenants of the defendant, who in turn informed the defendant about the demolishing the building, but the defendant did not take any steps to demolish his building.
6. That on 15.10.2012 in the morning hours defendant's building collapsed and in the process the entire debris fell on the western portion of the plaintiffs building, as a result of which, the eastern portion of the plaintiffs' building was also extensively damaged. That plaintiffs suffered heavy loss on account of the negligence on the part of the defendant. In fact, plaintiffs' tenants by name Omprakash, his wife Triveni and their daughter suffered serious injuries and they were hospitalized at K.R. Hospital, Mysore. Plaintiffs lodged a complaint before Mandi Police Station. Due to falling of debris, it blocked the main entrance of the house property causing inconvenience to the tenants. Plaintiffs have stated that 5 they suffered loss to the tune of Rs.3.00 lakhs and a portion of eastern side of plaintiffs' property has been kept open because of the illegal construction on the defendant. On account of these facts, the tenants of the plaintiffs vacated the premises and the plaintiffs have also vacated the premises and they are residing in rented premises.
7. That plaintiffs got issued legal notice dated 8.11.2012 for which defendant issued an untenable reply. Plaintiff estimated the loss at Rs.2,40,000/- after consulting Civil Engineer. Hence, the suit was filed seeking damages of Rs.3.00 lakhs.
8. Pursuant to receipt of suit summons and court notices, defendant appeared through his counsel and filed written statement. Defendant denied the averments made in the plaint while admitting that he is the owner of house property bearing No.1072. He has stated that the said property consisted of three shops and a house purchased from one Ugrappa and that it is 80 years old. There is a 4 6 feet passage between the property of the plaintiffs and defendant. That there was heavy rain on 13th and 14th of October 2012 at Mysore. On account of continuous rain, a portion of defendant's building collapsed. Plaintiffs' building is also over 80 years old mud construction and it has lost strength to withstand rain and storm and it collapsed simultaneously with the defendant's building and that defendant is not responsible for the collapse of plaintiffs' building and it was due to natural causes which were beyond his control. That the collection of debris on the foot of the building is also natural. That plaintiffs never approached the defendant nor requested him to demolish his building on the ground that it was in a dilapidated condition. Defendant has alleged negligence on the part of plaintiffs stating that plaintiffs had not taken precautions and preventive steps, but he had done so. Defendant has stated that defendant is quite aware of the fact that the defendant had instituted cases of eviction against his tenants on the ground of demolishing and reconstruction and was waiting for the tenants to vacate from the 7 premises. That the mishap caused is an instance of act of God and cannot be attributed to defendant and that in fact defendant himself has been put to loss and that plaintiffs cannot try to seek illegal gain from the mishap. Hence, defendant sought for dismissal of the suit.
9. On the basis of the rival pleadings, the trial court framed the following issues for its adjudication;
"1) Whether the plaintiff proves that due to negligent act of the defendant his debris of the building has collapsed on eastern portion of his property has been damaged?
2)Whether the plaintiff proves that he is entitled for the damages to the tune of Rs.2,40,000/- with interest at the rate of 18% as prayed for in the plaint?
3)Whether the plaintiff is entitled for the mandatory injunction as sought for?
4) What order or decree?"8
In support of their case, plaintiffs examined two witnesses as P.W.1 and P.W.2. They produced 51 documents which were marked as Ex.P.1 to Ex.P.51. Defendant examined himself as D.W.1. He did not produce any documentary evidence. On the basis of the evidence on record, the trial court answered issue No.1 in the affirmative, issue No.2 as partly in affirmative and issue No.3 in the negative and decreed the suit in part by directing the defendant to pay damages of Rs.2,40,000/- with interest at 16% per annum.
10. Being aggrieved by the judgment and decree of the trial court, defendant preferred R.A.No.799/2016 before the First Appellate Court which on hearing learned counsel for the respective parties framed the following points for its consideration;
"1) Whether the Trial Court was correct in holding that the damage caused to the suit schedule property is attributable to negligence of defendant and hence 9 whether the Trial Court was correct in imposing liability on the defendant?
2) Whether the quantification of damages at Rs.2,40,000/- as done by the Trial Curt is in accordance with law?
3) Whether the impugned Judgment and Decree calls for interference?
4) What order?
The First Appellate Court answered point Nos.1 and 2 in the affirmative and point No.3 in the negative and dismissed the appeal by confirming the judgment and decree of the Trial Court. Being aggrieved by the judgment of the First Appellate Court, defendant has preferred this second appeal.
11. Though there is a delay of seven days in filing the appeal, nevertheless I have heard learned counsel for the appellant in order to ascertain as to whether any substantial question of law which would arise in this appeal. I have perused the material on record. 10
12. Appellant's counsel submitted that the courts below were not right in awarding damages by way of monetary compensation to the respondents/plaintiffs by holding that the defendant was negligent in causing damage to the plaintiffs' property. He submitted that the collapse of the defendant's building was on account of a mishap and due to circumstances beyond the control of the defendant; that the buildings of the plaintiffs and the defendant are ancient building which were over 80 years old and in a dilapidated condition; that on account of heavy rain which occurred on 13th and 14th October 2012 in Mysore City, defendant's building collapsed and naturally the debris fell on plaintiffs' building which is adjacent to defendant's building. Plaintiffs' building was also 80 years old which could not withstand weight of debris and therefore, there was damage caused to the plaintiffs building, the same cannot be attributed to the defendant. He further submitted that even as per Ex.P.28, the estimation made by Civil Engineer is only for Rs.90,000/-, but the courts below have awarded Rs.2,40,000/- which is 11 highly exorbitant. Learned counsel for the appellant submitted that substantial questions of law would arise in this appeal and therefore, the appeal may be admitted for a detailed hearing.
13. Having heard the learned counsel for the appellant, it is noted hat the suit property is a house property bearing No.1074, while defendant's property is situated adjacent to the suit property bearing No.1072. It may be both the construction are old properties in the sense that the buildings are over 80 years old. But, the fact remains that the defendant has not maintained his property in good repair. Had the defendant repaired his property regularly and made kept it in good repair, it could not have collapsed even if there was a heavy rain on 13th and 14th of October 2012. The fact that defendant's property collapsed on that day and the debris fell on the plaintiffs' property has been established. The damage caused to plaintiffs' property has also been established. In fact, plaintiffs averred that not only his property has been 12 damaged, but his tenants have also vacated the property on account of the damage caused to the property.
14. In the circumstances, plaintiffs sought damages to the tune of Rs.3.00 lakhs along with interest at 18% per annum from the date of the suit till realization. But, the trial court while answering issue No.2 has awarded damages of only Rs.,2,40,000/- and not what has been sought by the plaintiffs. While awarding the said amount, the trial court has held that the damage caused to the plaintiffs property cannot be attributed to act of God, but on account of the negligence on the part of the defendant in not keeping his property in good repair and not taking necessary steps to ensure that his building does not collapse, as admittedly the said property was over 80 years old.
15. The claim made by the plaintiffs has not been granted as sought, but after examining the evidence especially the evidence of P.W.2 who estimated the cost of re-construction after removing debris at Rs.2,40,000, 13 such a precise amount has been granted by the trial court which has been confirmed by the First Appellate Court . While re-appreciating the evidence on record, the First Appellate Court by its judgment has also held that despite there being heavy rain, the damage caused to the plaintiffs' property on account of the collapse of the defendant's building due to the negligence on the part of the defendant by omitting to keep his property in good repair. The Appellate Court has confirmed the judgment and decree of the trial court and thereby dismissed the appeal. I do not find any substantial question of law which would arise for consideration in this appeal. There is no merit in the appeal.
16. Appeal is hence dismissed.
In view of the dismissal of the appeal, the applications also stand dismissed.
Sd/-
JUDGE Msu