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Bahadur Singh JaIn Vs. Ram Sunder - Court Judgment

LegalCrystal Citation
SubjectContract
CourtDelhi High Court
Decided On
Case NumberRegular Second Appeal No. 71 of 1971
Judge
Reported in1977RLR247
ActsCode of Civil Procedure (CPC), 1908 - Order 6, Rule 2; Indian Contract Act, 1872 - Sections 73
AppellantBahadur Singh Jain
RespondentRam Sunder
Advocates: Ravinder Sethi and; Maharaj Kishan, Advs
Cases ReferredIn Goldsoll v. Goldman
Excerpt:
.....damages for breach of contract under section 73 of the contract act, 1872 - it was held that the special damages should be pleaded specifically and should be proved to avail the relief - however, the general remedies can be awarded to the plaintiff in case the court is satisfied that the loss was caused to him - - 515 lord macnagten observed that 'general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of, while special damages, on the other hand, are such as the law will not infer from the nature of the act. they do not follow in ordinary course and they are exceptional in their character and, thereforee, they must be claimed specially and proved strictly. ..special damages are given in respect of any consequences..........quantum of damages, it may be observed that damages are of two kinds, namely, general and special. general damages are those which arise naturally in the normal course of things and the special damages are those special and extraordinary circumstances beyond reasonable prevision of the parties (see monarch s. s. co. v. karishamns oliefabriker, (1949) a. c. 1966. in stroms bruks aktis bolag v. hutchand, (1905) a. c. 515 lord macnagten observed that 'general damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of, while special damages, on the other hand, are such as the law will not infer from the nature of the act. they do not follow in ordinary course and they are exceptional in their character and, thereforee, they must be.....
Judgment:

B.C. Misra, J.

(1) [RESPONDENT was tenant in a shop owned by appellant. Parties agreed before Rent Controller to repairs of shop by appellant in a week at an expense of Rs. 480.00 on 17.8.66. There was extention of time and it was last done on 2.9.66. Repairs could not be completed until 27.9.66 and then tenant carried out the same himself. Then on 2.2.67, plaintiff sued appellant for Rs. 3,500.00 as damages @ Rs. 150.00 per day for period when shop remained under repairs, Rs. 800.00 for value of goods lost due to theft facilitated by removal of door for repairs and for value of material supplied for repair. Trial Court dismissed the suit but in 1st appeal is was held that landlord had taken at least 16 days extra while doing repairs and shop remained without doors and tenant was entitled to Rs. 25 for each extra day as damages and passed a decree for Rs. 375.00. The landlord appealed to High Court.] Judgment, para Ii onwards is :-

(2) With regard to the quantum of damages, it may be observed that damages are of two kinds, namely, general and special. General damages are those which arise naturally in the normal course of things and the special damages are those special and extraordinary circumstances beyond reasonable prevision of the parties (see Monarch S. S. Co. v. Karishamns Oliefabriker, (1949) A. C. 1966. In Stroms Bruks Aktis Bolag v. Hutchand, (1905) A. C. 515 Lord Macnagten observed that 'General damages are such as the law will presume to be the direct, natural or probable consequence of the act complained of, while special damages, on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course and they are exceptional in their character and, thereforee, they must be claimed specially and proved strictly.' In prahn v. Royal Bank of Liverpool, (1870) L. R. 5 Ex. 92 Martin J. observed that 'General damages are such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man......... Special damages are given in respect of any consequences reasonable and probably arising from the breach complained of'. General damages need not be specifically pleaded though the amount claimed must be specified (see Mayne on Damages, 12th Edition, page 813). Order 20 Rule 6 of the Rules of the British Supreme Court required every statement of claim to be stated specifically the relief which the plaintiff claims. This is at par with our order 6 Rule 2 of the Code of Civil Procedure. Mayne in paragraph 970 stated 'General damage consists in all items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damage consists in all items of loss which must be specified by him before they may be proved and recovery granted.

(3) In Minor Veeran v. T.V. Krishnamo- orthy, : AIR1966Ker172 , the learned single Judge quoted with approval a passage from Law of Pleadings by Mogha. The quotation is from 10th Edition on pages 24-25, which in the 12th Edition, is found on page 27. It is to the effect that general damages need not be pleaded specifically, nor is any evidence necessary to prove their amount and the plaintiff might only allege facts and end with the prayer for award of damages. It is further observed that general damage is such as the law will presume to be the natural or probable consequence of the defendant's act and it need not be proved by evidence. In Minor Veeran's case (Supra) : AIR1966Ker172 the court further observed that the plaintiff claiming damages but failing to prove any special damage might be entitled to general damages and reference has been made to Hebridean Coast v. Herbrideen Coast, (1961). A.C. 545 where the plaintiff failing in his claim for special damages was awarded general damages.

(4) In Mayne on Damages. 12th Edition, paragraph 991, the same rule of law with regard to proof of damages is stated thus : 'Certain damages may be inferred or presumed this is particularly so with non-pecuniary losses. In Draner V. Trist, (1939) 2 All E. R. 513 Goddard L. J. observed that 'the law assumes or presumes that, if the goodwill of a man's business has been interfered with by the passing off of goods, damage results there from. It is one of the class of cases in which the law presumes that the plaintiff has suffered damage.' In Tripp v. Thomas, (1824) 3 B. & C. 427 damages were awarded although no evidence of damages had been given at the trial. In Goldsoll v. Goldman, (1914) 2 Ch. 603 damage by way of loss profits was allowed to be inferred.

(5) The distinction between general and special damages is very clearly marked in cases of tort, but the distinction is well established even in case in contract. In Mulla's Contract Act, 9th. Edition, page 547, the rule of law is thus stated : 'General damages are which the jury may give when the judge cannot point out any measure of damages by which they are to be assessed except the opinion and judgment of a reasonable men'.

(6) As a result of the authorities, it is manifest that while special damages must be pleaded and proved specifically, general damages need not be so pleaded or proved and the court can award general damages if it is satisfied that a party has suffered loss. The quantum of damages is a question of fact which rests in the discretion of the court and does not call for interference by the appellate court unless and until it is wholly erroneous estimate of the damage suffered or the amount awarded is inordinately low or inordinately high [see Davis v. Powel Dufferin Associated Collieries Ltd. (1941) 1 All E.R. 657 and Nance v. British Columbia Electric Railway Co. Ltd; (1951) A.C. 601.

(7) In the instant case, the respondent had pleaded all the facts relating to his cause of action and he had claimed damages at the rate of Rs. 150.00 per day and had claimed special damages. The lower appellate court has awarded Rs. 25 per day for only 15 day's duration of the injury out of the period of 27 days. During this period the scaffolding outside the shop had been erected, doors and chokhats had been removed, while the work of repairing roofs and the walls was in progress or was in suspense. DW1, Risalli Mal, mate examined on behalf of the appellant stated that a curtain was put at the premises where the work of repairs was going on and the plaintiff used to sit on the adjoining premises and the gap between the pillar and the girder was filled up by bricks. He also admitted that the chokhats had been removed.

(8) It is, thereforee, evident that the premises in the tenancy of the respondent were kept in a bad shape and inconvenience and discomfort from the operations of repairs would certainly cause subtantial loss which the court is entitled to presume and award even in the absence of special damages. In my opinion, the lower appellate court has awarded almost nominal damages for the shortest period of injury caused by the respondent. The damages which the court has awarded covers all the counts whatsoever. The lower appellate court has properly exercised the discretion and arrived at a finding which is just and correct according to law. The same does not call for interference in second appeal. Appeal dismissed.


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