:J U D G M E N T:
The respondent No. 1 is owner in possession of an orchard plot of land, measuring 10 Kanals and 17 marlas comprising survey No. 1051 situated at Saidpora, Sopore (hereinafter referring to as suit land. The appellants in the year 1998 decided to lay a high voltage transmission line, the proposed transmission line was also to pass over the suit land. The respondent no. 1 aggrieved of the proposal of the appellants filed a writ petition before this court registered as OWP No. 01/1998, which was disposed of on 18th May, 1998 with the direction to the appellants to lay the transmission line only after following due procedure of law and to reckon with safety and security concerns of the respondent no. 1. The respondent no. 1 was also direct to be heard in the matter if so required under law.
The appellants proceeded with the project and according to the respondent no. 1, while doing so observed rules and regulations in breach. The respondent no. 1 in the said background was constrained to institute a suit for grant of mandatory injunction decree as also damages. The case set up by the respondent no. 1 before the ld. District Judge, Baramulla was that the appellants had while laying the transmission line disregarded the safety rules and not maintained the height of the towers as required under the Electricity Act and rules made there under. The respondent no. 1 complained that the transmission line had adversely affected the fruit bearing trees and also put the respondent no. 1 and his family members in danger. The respondent no. 1 on the strength of the factual averments made in the plaint sought a mandatory injunction decree commanding the appellants to remove the transmission line from the suit land and also to a decree of an amount of Rs. 90,000/- on account of damages. The suit was opposed by the appellants on the grounds that 33 KV transmission line was necessary to fed new receiving station Seelou and that the route of alignment was duly approved by the Competent Authority. The appellants while admitting that the transmission line passes over the suit land denied that any loss or inconvenience was caused to person or property of respondent no. 1. The appellants ruled out question of any loss or damage to the suit land or the trees standing thereon. However, the appellants after filing their written statement opted to stay away from proceedings and were set exparte. The trial court during the trial of the suit, appointed Sh. Ab. Khaliq Kanjwal, Superintending Engineer (retired) as Commissioner for spot inspection, as regards maintenance of the safeguards while laying the transmission line. The Commissioner submitted a report EXPW-NAS dated 29.06.2004 and also stepped in the witness box. The Commissioner in his report, which is reproduced verbatim in the trial court judgment, stated that the safety rules were comprised by the appellants, the Commissioner in particular made reference to Indian Electricity Rules Clause (80), Page 45 that in the opinion of the Commissioner was not acted upon. According to the Commissioner the appellant because of the transmission line was not in a position to maintain and look after the Orchard and that as many as 19 Apple Trees were affected by the transmission line. Commissioner assessed loss on account of removal of 19 Apple Trees at Rs. 2, 78, 460/-. The trial court after perusal of the pleadings and on appreciation of the evidence including EXPW-NAS/1, held the respondent no. 1 to have proved his case. The suit was decreed and a decree directing the appellants to pay an amount of Rs. 2, 78, 460/- was passed in favour of respondent no. 1 and against the appellants.
The respondents question the judgment and decree dated 04.11.2006 in the present appeal on the grounds that the trial court has not considered the matter in right perspective; that the impugned judgment and decree are against the mandate of law and that the appellants have observed all safety measures while laying the transmission line in question. The trial court is said to have acted in a noval way by appointing a Commissioner for spot inspection and proceeded to place exclusive reliance on the report of the Commissioner. It is pointed out that no other orchardist except the respondent no. 1 complained of the damage to the property due to transmission line and that the apprehension voiced by the respondent no. 1 in the plaint and the loss claimed to have suffered was devoid of any basis. The trial court is said to have fell in an error by passing a decree in the amount of Rs. 2, 78.476/- as against Rs. 90,000/- claimed in the suit by the respondent no. 1.
Heard and considered.
The appellants, it is pertinent to point out, of their own stayed away from the proceedings, leaving no option for the trial court but to proceed exparte against the appellants. The appellants ought to have after filing written statement made an attempt to substantiate case set up before the trial court and also made an endeavour to rebut the evidence adduced by the respondent no. 1 in support of the suit. The appellants by avoiding to do so have given a walk over to the respondent no. 1. The trial court had before it the evidence adduced by the respondent no. 1 as also report of an expert who happens to be a retired officer of the department that was engaged in laying the transmission line. The officer could be safely credited with expertise in the matter like one before the trial court. The Commissioner report EXPW-NAS which was well reasoned and made reference to the rules and regulations, is left un-impeached and un-assailed. The argument that the trial court by appointing a Commissioner for spot inspection has adopted a novel procedure is specious and bereft of any merit. Order XXVI (9) CPC empowers the court to issue a commission for local investigation or elucidation of any matter in dispute, when the court is of the opinion that such investigation or elucidation is necessary for just disposal of the suit. Order XXVI Rule 10 (A) proceeds further and empowers the court to issue a commission for Scientific investigation. It reads as under:-
“(1) Where any question arising in a suit involves any scientific investigation which cannot, in the opinion of the Court, be conveniently conducted before the Court, the Court may, if it thinks it necessary or expedient in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to inquire into such question and report thereon to the Court.
(9) The provisions of rule 10 of this Order shall as far as may be, apply in relation to a Commissioner appointed under this rule as they apply in relation to Commissioner appointed under rule 9.”
The trial court thus while issuing a commission to Engineering expert, in the present case, acted within four corners of order XXVI CPC. There is no reason to find fault with the procedure adopted by the court. The appointment of the Commissioner on the other hand has been rightly resorted to, as the question that had arisen in the suit required Scientific investigation, not otherwise capable of being conveniently conducted before the court. The trial court thus rightly placed reliance on experts' opinion-EXPW-NAS.
So viewed, there is no substance in the grounds urged in the memorandum of appeal as regards the conclusions arrived at by the trial court. However, the trail court while granting the relief has traveled beyond scope of the suit. It was for respondent no. 1 to assess the damage/loss to which the respondent no. 1 was exposed due to violation of norms by the appellants and the trial court was not expected to go beyond the damages so assessed not even on the basis of the expert opinion-EXPW-NAS. It may be recalled that the expert opinion-EXPW-NAS assessed the loss likely to be suffered by the respondent no. 1. In the event the respondent no. 1 removed 19 fruit bearing trees coming under the transmission line in question. The amount worked out would thus reflect the loss to the respondent no. 1 in the event the fruit bearing trees were so removed. In the circumstances there was no reason for the trial court to award damages of expected loss worked out by the Commissioner. The respondent no. 1 in his own wisdom assessed the loss at Rs. 90,000/- and claimed the said amount from the appellants as damages. The trial court after it was satisfied as regards merits of the suit, was to grant decree for an amount of Rs. 90,000/- as claimed in the plaint and not Rs. 2, 78,460/-.
For what has been discussed above, while the impugned judgment decree as regards failure of the appellants to observe and adhere to rules and regulations governing transmission of 33 KV transmission line and loss to the suit orchard due to said violation of rules and regulations is upheld. The decretal amount is slashed down to Rs. 90,000/- as claimed by the respondent no. 1 in the suit. Resultantly, the appellants are directed to pay amount of Rs. 90,000/- to the respondent no. 1. The appeal is accordingly disposed of. Decree sheet be drawn up. The record be send down and appeal file consigned to record.
Disposed of.