Bihar State Housing Board Through Its ... vs Smt. Samudari Devi
2024 Latest Caselaw 4840 Jhar

Jharkhand High Court

Bihar State Housing Board Through Its ... vs Smt. Samudari Devi on 3 May, 2024

Author: Gautam Kumar Choudhary

Bench: Gautam Kumar Choudhary

IN THE HIGH COURT OF JHARKHAND AT RANCHI
             S. A. No. 64 of 2004

1. Bihar State Housing Board through its Managing Director
   (now Jharkhand State Housing Board)
2. Executive Engineer, Bihar (now Jharkhand) State Housing Board
                                              ....    ....       Appellants
                     Versus
Smt. Samudari Devi                           ....   ....       Respondent
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants : Mr. Sachin Kumar, Advocate

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Oral Order 12 / Dated : 03.05.2024

1. The instant second appeal has been filed under Section 100 of C.P.C. against the judgment of affirmance passed in Money Appeal No. 01/1997

2. The plaintiff/respondent filed Money Suit No. 04/1989 against the appellants Housing Board for damages of boundary wall of the plaintiff's house due to excavation done on its eastern side.

3. The appellant Housing Board appeared and took plea that a tank was constructed much earlier and it was within the knowledge of the plaintiff in the year 1955. The house of the plaintiff was in a dilapidated condition having no wall work.

4. Learned Trial Court decreed the suit allowing the decretal amount to the tune of Rs.30,000/- with interest pendent-lite and future, at the rate of 12% per annum till its realization.

5. Learned First Appellate Court while affirming the judgment modified the decree deducting 30% for total cost of construction was allowed and interest was reduced to 6% per annum from the date of institution of the suit till realization of compensation.

6. Heard learned counsel for the appellants-Housing Board.

7. This appeal was admitted on the following substantial question of law"

"Whether the lower appellate court could have framed a separate issue no. 4 and could have decided the same in absence of any evidence on record on such issue?

8. After having considered the submissions advanced on behalf of the appellants-

Housing Board, this Court is of the view that any direction at this stage to frame a separate issue by learned Appellate Court will further procrastinate the matter.

9. This is a second appeal arising out of a suit in the year 1989 and more than three decades have elapsed. Under the circumstance, it will not be expedient in the interest of justice to direct the Appellate Court to frame issue and decide it afresh.

I do not find any ground to interfere with the impugned judgment and decree. Second appeal stands dismissed.

Pending I.A., if any, stands disposed of.

(Gautam Kumar Choudhary, J.) AKT/Satendra

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