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Judgment
Manisana, J.—This appeal arises from a decree passed by the District Judge Gauhati in MA No. 2 of 1976 dismissing the appeal arising out of a decree passed by the Assistant District Judge (I) Gauhati in Ms. No. 40 of 1971.
The Plaintiff-Respondents instituted the suit against the Defendant-Appellants claiming Rs. 5,100/- as compensation for illegally removing doors, windows etc of their houses and Rs. 400/- for use and occupation of the houses. The case of the Plaintiffs is that the Plaintiffs obtained a decree in TS No. 190 of 1960 in the Court of the Munsiff Gauhati for eviction of the Defendants from houses tenanted by the Defendants from the Plaintiffs at a monthly rent of Rs. 50/-. The decree was executed on 11.6.70. At the time of the delivery of possession, it was found that the Defendants had illegally removed doors, windows, etc. of the houses. The Plaintiffs therefore claimed Rs. 5,100/- as compensation and Rs. 400/- for use and occupation of the houses from 1.1.70 to 11.6.70. The Defendants contested the suit denying the allegations made in the plaint. However, the trial Court decreed Rs. 2,000/- as compensation and Rs. 275/- for use and occupation. On appeal, the lower appellate Court affirmed the decree. Hence this appeal.
Mr. B.K. Goswami, the learned Counsel for the Appellants, had not challenged the decree regarding Rs. 275/-. However, Mr. Goswami has contended that when the Plaintiffs have not addued evidence to prove the loss claimed, the suit as regards damages should have been dismissed.
Both the Courts below have held that the Defendants are wrong-dcers for illegally removing the doors, windows, etc, but there is no evidence on record to assess damages. However, the Courts below have ordered the Defendants to pay Rs. 2000/- damages on the basis of reasonable compensation out of Rs. 5,100/- claimed by the Plaintiffs.
In Tunu Khan Vs. Union of India (UOI), the Patna High Court, has held that when the Plaintiffs went to the Court for a claim of Rs. 536/-, it is for the Plaintiff to prove his claim of any particular amount and, therefore, when then is no evidence for his claim of that particular amount the trial Court could not give any other decree to the Plaintiffs on the basis of reasonable compensation and the suit should be dismissed.
With respect, I am unable to agree with the decision of the Patna High Court. I approach the matter as follows. In my judgment, the Plaintiffs must satisfy the Court both as to the fact of damage and as to its amount with reasonable certainty. If the Plaintiff fails to prove damages, his suit must fail. But if the fact of damage is proved, but no evidence is given as to its amount, then it would be impossible to assess damages. However, in such a case, namely when there is difficulty for assessing loss, the Plaintiff will be entitled to an award for nominal damages for the reason that, in fact, there was damage but the amount cannot be assessed for want of evidence and, therefore, whenever there is infringement of legal rights, or wherever any act injures another''s right, an action will be sustained against the wrong-doer for an invasion of the right without proof of actual loss as the law presumes or implies pecuniary loss.
On the facts and circumstances of the case, I am of the view that if nominal damages of Rs. 125/- is awarded, it will meet the ends of justice. I do so accordingly. In the result, the Respondents will be entitled to Rs. 400/- out of which Rs. 125/- is nominal damage.
For the foregoing reasons, the appeal is partly allowed and the decree of the Courts below are modified to the extent indicated above. No costs.