Oil & Natural Gas Corporation Ltd vs Umarbhai Bapalbhai Kureshi ...
2023 Latest Caselaw 6749 Guj

                                                                                          NEUTRAL CITATION




       C/SA/102/2009                                     ORDER DATED: 13/09/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/SECOND APPEAL NO. 102 of 2009

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         OIL & NATURAL GAS CORPORATION LTD & 1 other(s)
                            Versus
     UMARBHAI BAPALBHAI KURESHI DECEASED THRO LEGAL HEIRS
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Appearance:
MR AJAY R MEHTA(453) for the Appellant(s) No. 1,2
MR JM BAROT(143) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                               Date : 13/09/2023

                                ORAL ORDER

1. This Second Appeal under Section 100 of C.P.C. is at the instance of the original defendant - Oil and Natural Gas Corporation Limited and is directed against the judgment and decree dated 11.11.2008, passed by the Additional District Court, Mahesana in Regular Civil Appeal No.179 of 2005 arising from the judgment and decree dated 27.12.2002 passed by the Additional Civil Judge, Mahesana allowing the Special Civil Suit No.191 of 1994, filed by the respondents - original plaintiffs, whereby the appellant - Corporation directed to pay Rs.50,000/- towards the cost.

2. The respondents-original plaintiffs herein had filed Special Civil Suit before the Civil Court, Mahesana, inter alia claiming Rs.1,85,000/- towards the compensation for damages alleged to have been caused to their tubewell, when the work of drilling in the land bearing Survey No.140 of Village: Dudhai, Taluka: Kadi, District: Mahesana was undertaken by the

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employees of appellant-original defendant, as a result of which, water of the tubewell polluted and blackish water being found from the tubewell. In these background facts, it is the case of the plaintiffs that, for the agricultural purpose they were compelled to lay a new tubewell for the purpose of irrigation and they had spent amount of Rs.75,000/- for new tubewell and had paid Rs.38,000/- towards labour charges and claimed Rs.17,000/- towards damages suffered to the crops etc. The suit was contested by the appellant herein. The Civil Court framed the issue at Exh.11. After hearing the parties and considering the evidence on record, the civil court came to a conclusion that, the plaintiffs failed to prove that the existing tubewell was failed due to negligent and wrongful act on the part of the appellant-defendant. The learned Civil Court also held that, the plaintiffs failed to establish the facts that, he had suffered the expenses of Rs.1,30,000/- in laying down the new tubewell and therefore, the plaintiff is not entitled for the amount of damages as claimed. However, the learned trial Court on humanitarian ground awarded Rs.50,000/- towards the cost to be paid by the appellant-defendant. Being aggrieved with the judgment and decree dated 27.12.2002, the appellant herein filed an appeal before the District Court. The District Court vide its judgment and order dated 11.11.2008, by dismissing the appeal, upheld the decree passed by the Civil Court.

3. Being aggrieved and dissatisfied with the judgment and decree of the First Appellate Court, the appellant-original defendant is here before this Court with the present second

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appeal.

4. The second appeal has been admitted on the following substantial questions of law:

"i. Whether the onus and burden of proving the claim was on the plaintiff and whether a decree could have been passed despite holding that the plaintiff had failed to discharge its burden of proof ?

ii.Whether any amount could have been awarded as exemplary damages despite coming to the conclusion that there was a failure on part of the plaintiff in proving that failure of tube well was caused due to any act of the defendant ?

iii.Whether the provisions of Section 18 of the Limitation Act would apply qua the alleged acknowledgment made after expiration of the statutory period of limitation ?

iv.Whether payment made by the appellant-ONGC towards crop compensation could have been considered as acknowledgment within the meaning of Section 18 of the Limitation Act for deciding as to whether the suit filed by plaintiff can be said to be fall within the prescribed period of limitation ?"

5. Mr. Ajay Maheta, learned counsel appearing for the appellant has submitted that, the judgment and decree passed by the Courts below are contrary to the law and evidence on record. The trial Court, awarded compensation by way of exemplary damages without there being any evidence on record and same having not been appreciated by the First Appellate Court. That, there are specific findings of the trial Court that, the plaintiffs failed to prove their case and despite of the said findings, the trial Court without any evidence awarded Rs.50,000/- towards the cost.

6. In the aforesaid facts, Mr. Mehta, learned counsel

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appearing for the appellant submitted that, the trial Court could not have passed the decree of Rs.50,000/-, as it is the trial Court who had recorded that, the plaintiffs failed to discharge their burden to establish the wrongful act on the part of the appellant and as such, no damages caused to the existing tubewell.

7. In the aforesaid contention, Mr. Mehta submitted that, the Courts below committed serious error of law in passing the decree of exemplary damages.

8. Mr. J.M. Barot, learned counsel appearing for the respondents submitted that, the trial Court has rightly awarded the amount of Rs.50,000/- as the employee of the appellant- O.N.G.C., under the guise of research work, entered into suit land and caused severe damages to the tubewell and water of the tubewell got polluted which facts supported by the certificate issued by the authority concerned. The Appellate Court has rightly confirmed the findings recorded by the trial Court. Thus, therefore, the appeal may not be entertained as no any substantial questions of law is involved.

9. Having heard learned counsel for the respective parties and having gone through the material on record, the only question that falls for my consideration is whether the second appeal involves any substantial question of law?

10. It is settled position of law that, the burden is on the plaintiff to prove that the issue of damages as pleaded in the suit. It is an undisputed fact that, the plaintiffs-respondents

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failed to establish by leading cogent evidence that, the existing tubewell in the land failed on account of wrongful act on the part of the appellant. The learned trial Court also came to conclusion that, there is no damages suffered to the crops of the plaintiffs. In such circumstances, this Court is of considered view that, the decree of Rs.50,000/- could not have been passed where the plaintiffs failed to discharge their burden of proof on the issue of tubewell and damages suffered to the crops etc.

11. For the reasons recorded, the second appeal is allowed. The judgment and decree passed by the Courts below dated 11.11.2008 and 27.12.2002 are not sustainable in law and accordingly, quashed and set aside. This Court vide order dated 18.03.2010 passed in Civil Application for Stay permitted the plaintiffs to withdraw 50% amount of compensation, whereas the remaining amount has been invested in the F.D.R. The trial Court shall disburse/release the 50% amount with interest, if any, so invested in F.D.R. in favour of the appellant herein. This Court do not deem it fit to direct the original plaintiffs to deposit the 50% amount.

(ILESH J. VORA,J) TAUSIF SAIYED