High Court · 2012

This appeal by the defendants is directed against the judgment and decree dated 25.8.2005 passed by the learned District Judge, Hailakandi in Money Suit No. 2/2 004 (earlier No. 36/1999) decreeing the suit of the plaintiff/respondent to the tune of Rs. 84,890/-without cost and without any interest. The plaintiff/respondent instituted the aforesaid suit praying for a decree for realization of a sum of Rs. 1,80,394/- from the defendants for the damages cause d to the materials used for the construction of three hutments and three numbers of scaffolds as well as for demolition of the constructions by the defendants c ontending inter alia that pursuant to the various work orders issued by the defe ndants in favour of the plaintiff for undertaking certain construction works, th e plaintiff constructed three hutments with non inflammable materials and also c onstructed other temporary hutments for carrying out the construction work allot ted to him for which he had to procure and bring the wood and bamboo scaffolds o f different sizes incurring an expense of Rs. 1,80,394/-, which hutments and hou ses were demolished by the defendants in the month of January, 1997 without any notice and without affording any opportunity to the plaintiff to remove the mate rials thereby causing damages to the tune of the aforesaid amount. The suit of the plaintiff was contested by the defendants by filing joint writte n statement contending that the temporary hutments were constructed by the plain tiff by using waste materials of the defendants lying in the scrap yard, and no permanent construction was allowed to be raised. It was also pleaded that only i n case of non availability of waste materials the contractors were allowed to br ing materials from outside for which also necessary entry into the register main tained by the CISF were required to be made. The defendants thereby denied the c onstruction of the hutments and other constructions by the plaintiff by bringing materials from outside and without using the materials available in the scrap y ard of the HPC. The learned trial court on the basis of the pleadings framed the following issu es: - (cid:28)1. Is there any cause of action?

2. Is the suit barred under Sec. 2 of the CPC? 3. Is the suit barred by waiver, estoppels and acquiescence? 4. Is the suit barred by limitation? 5. Whether any loss or damage was caused to plaintiff by the defendants? 6. If so, to what relief the plaintiff is entitled? (cid:29) The plaintiff/respondent, in support of his case, has examined three witnesses a s against one witness examined by the defendants. The witnesses were duly cross examined by the respective parties. A commissioner was also appointed by the lea rned trial court for assessment of the damages caused to the plaintiff who has s ubmitted his report dated 4.6.2005. The said commissioner appointed by the court below was also duly cross examined by the defendants. The report of the commiss ioner was accepted by the court as evidence for appreciation of the matter in di spute. The learned trial court answered all the issues in favour of the plaintiff and d ecreed the suit for an amount of Rs. 84,890/-. Hence the present appeal. I have heard Mr. Roy, learned counsel for the appellant and Mr. Purkayastha, lea rned counsel appearing for the respondents. It has been submitted by Mr. Roy, learned counsel for the appellants that the le arned trial court ought not to have decreed the suit of the plaintiff to the tun e of Rs. 84,890/-, when the plaintiff could not prove his claim that hutments an d other constructions were made by bringing the bamboos and timber from outside source, when such constructions were raised by the plaintiff by using the materi als available in the scrap yard of the defendants HPC. The learned counsel, ther efore, submits that the decree passed by the learned court requires to be set as ide. Per contra it has been submitted by Mr. Purkayastha, learned counsel appearing f or the plaintiff/respondent that it is evident from the report of the commission er, which was accepted by the court below, that the plaintiff for the purpose of construction of the hutments and other constructions has used goods worth Rs. 1 ,69,780/-, which were brought from outside. It has also been submitted that the challan Nos. and the dates of bringing those goods are reflected in the register and as such the trial court ought to have decreed the suit of the plaintiff for Rs. 1,69,780/- instead of decreeing the suit of the plaintiff for Rs. 84,890/- being 50% of the said amount. It appears from the report of the commissioner which was accepted by the learned trial court that the plaintiff brought 26 items inside the HPC campus vide ten challans on different dates in the month of August and September, 1995, worth Rs . 1, 69,780/-. The entry register maintained by the contractor, which were prove d also supports the commissioner’s report in that regard. The defendants in the written statements has also admitted that whatever materia ls are not available the contractors are allowed to procure from outside and bri ng inside the campus of the HPC for construction of the hutments for the purpose of carrying out the construction work allotted to the contractor. It is not in dispute that the various contract works were allotted to the plaintiff/responden t for which there was necessity of construction of hutments and other construc tions for the purpose of carrying out such works. Though the defendants have tak en the plea that by Ext. ’A’ communication the plaintiff was asked to remove the materials stored therein within a period of 7 days which according to the defen dants was served on the plaintiff, issuance of such notice could not be proved b y the defendants either by producing the registered postal receipt or by examini ng anyone from the postal department relating to the service of such notice. On the other hand the plaintiff in his evidence has stated on oath that no notice w as served and the demolition was carried out without any notice. The plaintiff’s evidence could not be discredited by the defendants during cross examination. The report of the commissioner which was accepted by the court reveals use of ma terials worth Rs. 1,69,780/- brought from outside. The learned trial court, howe ver, has, taking into consideration the depreciating value of the goods, passed the decree for Rs. 84,890/- being 50% of the said amount. Since the plaintiff co uld establish the bringing of the goods worth Rs. 1,69,780/- for the constructio n of the hutments and other constructions for carrying out the work order issued by the defendants and demolition of the hutments causing damages to the propert y without giving opportunity to remove the same, the learned trial court keeping in view the depreciation has rightly passed the decree for Rs. 84,890/- which r equires no interference in the present appeal. The appeal is, therefore, dismissed. No cost.