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Gopal Chandra Chaudhury Vs. the Life Insurance Corporation of India - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 679 of 1981
Judge
Reported inAIR1985Ori120; 58(1984)CLT352
ActsSpecific Relief Act, 1963 - Sections 40; Code of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 41, Rule 27
AppellantGopal Chandra Chaudhury
RespondentThe Life Insurance Corporation of India
Appellant AdvocateS.K. Dey, Adv.
Respondent AdvocateS.P. Misra and ;S. Latif, Advs.
DispositionRevision allowed
Cases ReferredShikharchand Jain v. Digamber Jain Praband Karini Sabha
Excerpt:
.....finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. ' in view of the above legal proposition, the court cannot shut its eyes to the report of the civil court commissioner dated 30-6-1980 which contained the fact that the western wall of the plaintiffs building had a crack from the bottom to the top which, as apprehended by the plaintiff, may have been caused on account of the massive construction of the defendant's multistoried building close to it, as well as, construction of projections almost touching the plaintiffs wall on the western side......in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages. (2) no relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: provided that, where no such damages have been claimed in the plaint, the court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint on such terms as may be just for including such claim. (3) the dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.' it is clear from sub-section (1) that in a suit for perpetual.....
Judgment:
ORDER

K.P. Mohapatra, J.

1. This revision is from the order passed by the learned Munsif, First Court, Cuttack, rejecting the plaintiffs petition under Order 6, Rule 17 C.P.C. for amendment of the plaint.

2. The plaintiff instituted Title Suit No, 95 of 1977 against the defendant, the Life Insurance Corporation of India for permanent injunction to restrain it from making further constructions of projections and cornices, for mandatory injunction to remove those which have already been constructed and for serening or closure of windows and openings. The plaintiff has his double storied old residential building described in Schedule 'A' of the plaint. The defendant has been constructing a multistoried building on Schedule 'B' land of the plaint on the adjoining west of Schedule 'A' property within the municipal area of Cuttack. According to the plaint averment, the defendant has violated different provisions of the Orissa Municipal Act and did not leave a space of more than 3 feel width on the eastern side of the wall of the building under construction at the base. Further, while constructing the upper storeys of the said building, the defendant made projections and constructed lavatories above them almost adjoining the plaintiffs wall on the western side completely covering the vacant space at the base. As a result, the old western wall of the plaintiffs building has been endangered, in so far as, rain water will fall thereon and cause serious damage to it which might ultimately collapse.

3. The defendant in the written statement categorically denied the plaint averments and inter alia asserted that prior to the construction of the new multistoried building on Schedule'B' land of the plaint, there existed an old building adjacent to the plaintiffs building. For construction of the multistoried building the old building was demolished except the old eastern wall there adjacent to the plaintiffs western wall of the building. That being the position, there is absolutely no danger to the plaintiff's western wall being soaked and damaged by rain water or otherwise.

4. During pendency of the suit, a Civil Court Commissioner was deputed for local inspection who submitted his report dated 30-6-1980. In the report he stated that the defendant has constructed a new building with four storeys. In between the buildings of the plaintiff and the defendant there is a vacant space at the base. But on the first, second and third floors of the building there are projections and constructions over them close to the western wall of the plaintiffs building. There is a crack from the bottom to the top on the said western wall.

5. The plaintiff filed the petition under Order 6, Rule 17 C.P.C. for amendment of the plaint on 12-8-1981. By amendment, he sought to add some more facts, such as, damage to the wall and floor of his building as a result of the projections and constructions of the defendant's building on the first, second and third floors, claim of damages of Rs. 500/- and claim of pendente lite damages at the rate of Re. 1/- per day since 1st January 1979 till removal of the illegal constructions. The amendment was opposed on the grounds that if allowed, the character of the suit will be changed because, thereby a totally different cause of action will be introduced and further the claim of damages being barred by limitation could not be allowed. The learned lower court took the view that in a suit for injunction, a claim for damages by way of amendment would introduce a new cause of action and thereby change the character of the suit. Therefore, he disallowed the amendment.

6. Mr. S. K. Dey appearing for the petitioner urged that the proposed amendment will not change the character of the suit because, in view of the facts already stated in the plaint and the subsequent events as reported by the civil court commissioner, the claim for damages is permissible according to law. Mr. S. P. Misra appearing for the opposite party, on the other hand, strenuouslycontended that in a suit for permanent injunction damages cannot be claimed, the character of the suit will undergo a complete change because a new cause of action will be introduced and as the claim of damages is barred by limitation the same cannot be allowed to be incorporated in the plaint by way of amendment,

7. In view of the contentions raised, the following points arise for consideration :

(i) Whether in a suit for permanent injunction damages can be claimed.

(ii) Whether subsequent events can be taken into consideration for amendment of the plaint.

(iii) Whether the proposed amendment will substitute a new cause of action whereby the character of the suit will be changed.

(iv) Whether the claim of damages is barred by limitation so that such a claim cannot be introduced by way of amendment.

8. In order to decide the first point, it is necessary to quote Section 40 of the Specific Relief Act, 1963.

'40. Damages in lieu of, or in addition to injunction. --(1) The plaintiff in a suit for perpetual injunction under Section 38, or mandatory injunction under Section 39, may claim damages either in addition to, or in substitution for, such injunction and the Court may, if it thinks fit, award such damages.

(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint:

Provided that, where no such damages have been claimed in the plaint, the Court shall, at any stage of the proceeding, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.

(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.'

It is clear from Sub-section (1) that in a suit for perpetual injunction or mandatory injunction damages may be claimed either in addition to, or in substitution of such injunction. If no such relief for damages has been claimed, according to the proviso to Sub-section (2), the court shall, at any stage of the suit, allow the plaintiff to amend the plaint including such relief. In this connection reference may be made to the Division Bench decision reported in AIR 1975 Mad. 189, V. R. Nathan v. Mac Laboratories (P) Ltd., in which it was held that in a suit for permanent injunction, according to the proviso to Sub-section (2) of Section 40 of the Specific Relief Act, 1963 it is imperative and the Court has no option but to allow amendment for adding a prayer for damages. This being the provision of law, the contention that in a suit for permanent injunction damages cannot be claimed is wholly untenable.

9. So far as the second contention is concerned, the point raised is no longer res integra. In AIR 1973 SC 171, M. Laxmi & Co. v. Dr. Anant R. Deshpande, though in a different context, it was held :

'It is true that the Court can take notice of subsequent events. These cases are where the court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event. If the property which is the subject-matter of suit is no longer available the Court will take notice of such event. The court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice.'

In another decision reported in AIR 1974 SC 1178, Shikharchand Jain v. Digamber Jain Praband Karini Sabha, it was held :

'Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in thechanged circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties.'

In view of the above legal proposition, the Court cannot shut its eyes to the report of the civil court commissioner dated 30-6-1980 which contained the fact that the western wall of the plaintiffs building had a crack from the bottom to the top which, as apprehended by the plaintiff, may have been caused on account of the massive construction of the defendant's multistoried building close to it, as well as, construction of projections almost touching the plaintiffs wall on the western side. It is, therefore, necessary to take notice of the changed circumstance which will have the effect of shortening the litigation and of doing complete justice between the parties.

10. The third and the fourth contentions may be conveniently disposed of together. In para 10 of the plaint the plaintiff stated as follows :

'10. That in case the said projections are allowed to be completed, the projections will be so close to the plaintiffs building that when rain or drain water falls, the same will all fall and soak on the plaintiffs old western wall of the building on Schedule 'A' property. The plaintiffs building is an old building and the western wall is also equally old. In case the rain water is allowed (to) fall and soak the building wall of the plaintiff will be seriously damaged and there is every likelihood that the plaintiffs building may collapse.'

By adding a new para 12(a) by way of amendment the plaintiff sought to introduce a further fact that his building has already been affected because a crack has developed. By no stretch of imagination can it be said that the further fact sought to be introduced and referred to above is completely a new fact unconnected with the averments already made in the plaint. On the other hand, the fact averred in para 10 of the plaint is the basis for the further fact sought to be introduced in the light of the report of the Civil Court Commissioner which is a subsequent event and of which the Court can take notice according to law. Therefore, amendment ofthe plaint by introducing para 12(a) of the amendment petition is unobjectionable.

The other amendments relate to claim of damages of Rs. 500/-, claim of pendente lite damages at the rate of Re. 1/- per day from 1-1-1979 and valuation of the suit in view of the proposed amendment. The main objection to this part of the amendment petition is that the claim is barred by limitation. It is to be pointed out that the report of the civil court commissioner is dated 30-6-1980. The crack on the wall of the plaintiffs building giving rise to the claim of damages must have occurred prior to that date. There is nothing on record to determine when the crack had occurred. The amendment petition was filed on 2-8-1981. The claim for pendente lite damages which is a continuing one is still within limitation. Thus, whether the plaintiffs claim for damages is barred by limitation or not is a pure question of fact which is to be investigated and adjudicated at the time of trial. Since it is not possible to go into matters of evidence while disposing of the civil revision, it will be difficult to opine as to whether the claim is within limitation or barred by it. Therefore, the question of limitation for the claim of damages has to be left open for the trial Court to decide. If the trial Court will find that the claim is barred by limitation, it will be free to decline to grant a decree for damages. If, on the other hand, the claim or a part of it would be within limitation, the trial Court will no doubt assess the quantum of damages and grant a decree therefor.

11. For the reasons stated above, the Civil Revision is allowed. The plaint be accordingly amended. In the circumstances of the case parties shall bear their on costs.


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