Mohammed Hussan vs Shankerlal and Another

A.M. Sapre, J.—Defendant No. 1 has filed this Second Appeal u/s 100 of C.P. Code against the impugned judgment and decree dated 7.4.1997 passed by Vth Additional District Judge, Ujjain, in C.A. No. 2-B/1996 which in turn reverse the judgment and decree dated 13.12.1995 passed in C.S. No. 108/1988 by Civil Judge Class I, Badnagar. Facts of the case are these.

Plaintiff (respondent No. 1) brought a suit for recovery of Rs. 9,100/-against appellant (defendant No. 1) and respondent No. 2 (defendant) towards damages. In short the case of plaintiff was that he has a petrol and diesel pump for sale of both. On 15.2.1985 the defendant No. 2, who was a driver of bus belonging to defendant No. 1 came on plaintiff''s pump and dashed to petrol/diesel machines resulting in extensive damage to these machines. Due to this the plaintiff could not sell the petrol and diesel for almost 20 days. It is for this the plaintiff claimed damages to the tune of Rs. 9,100/-.

The defendant No. 1 denied the whole Incident and denied his liabilities in any manner whereas the defendant No. 2 i.e. driver remained ex-parte throughout. Parties led evidence.

The Trial Court dismissed the suit but lower Appellate Court in an appeal filed by the plaintiff decreed the suit and awarded a decree for Rs. 3,250/- against defendants. It is against this decree, the defendant No. 1 has filed this second appeal.

Heard Mr. A.S. Kutumble, learned Counsel for the appellant.

The main submission of learned Counsel for the appellant (defendant No. 1) was against the determination of damages. Learned Counsel urged that it has no basis whatsoever nor any evidence is led to support such basis. I do not agree. Indeed in view of finding recorded by the lower Appellate Court in Para 11 of the impugned order, the defendant No. 1 has no case nor he has any right of appeal to this Court. It reads as under.

This clearly shows that defendant No. 1 has consented to grant of decree for Rs. 3,250/-. No attempt was made by learned Counsel to contend that what is mentioned in para 11 of the impugned judgment is bad or wrongly recorded. Even in grounds of appeal, the statement recorded in para 11 of the impugned judgment is not challenged. In view of this nothing remains for the defendant No. 1 (appellant) to come up in appeal and challenge the impugned judgment which is essentially in the nature of consent.

That apart, I do not find any merit in the appeal otherwise also. It does not involve any substantial question of law for admission. The defendant No. 2 was the person to explain as to in what manner accident occurred he being the driver of Bus. He was not examined as witness. He remained ex-parte. The plaintiff witnesses were believed on the question of accident and also on damages. The plaintiff has led evidence to show the extent of loss suffered by him due to close of his pump. He was not awarded full damages but only fraction of it i.e. against Rs. 9,100/- only a sum of Rs. 3,150/- were awarded. In my opinion, it is reasonable.

Dismissed in limine.