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Civil Revision No.500-D of 1982, decided on 10th October, 1983.
---S.115 and O.VIII, R.10--Damages--Respondent was running business of bicycle repair, sale and hire in a shop built upon Nazool land--Temporary injunction issued in his favour and against Municipal Corporation, restraining petitioner from evicting respondent- Corporation demolished shop, violating temporary injunction- Respondent filed a suit for damages, Rs.9,920 as loss of various items plus Rs.20,000 as loss of profit and future damages at the rate of Rs.1,200 per month--Municipal Corporation did not file written statement despite various opportunities and Trial Court closed its right to file written statement--After recording respondent's evidence the suit was dismissed on the ground that respondent failed to prove his case--Appellate Court reversed the finding of Trial Court on the ground that allegations in the suit were not rebutted and decreed the suit for fts.29,920--Contention that as disclosed in plaint monthly business at rate of Rs.1,200 per month and from the date of cause of action and filing of suit this period was only 7 months and he was entitled only for Rs.8,400--Contentions raised on calculation found correct--Petition was accepted--Other claim was not disputed--Suit decreed for Rs.18,320 only.
Syed Fayyaz. Hussain Qadri for Petitioner.
Imtiaz Ahmad Chaudhry for Respondent.
Date of hearing: 10th October, 1983.
The facts are that on 28-1-1976, Mir Muhammad Hussain, respondent sued the petitioner Lahore Municipal Corporation, for the recovery of Rs.29,920 as damages. It was averred in the plaint that the petitioner was running his business of repair, sale and hire of the bicycles, in a shop built upon Nazool land; that in a suit brought by him against the petitioner, the latter was restrained by a temporary injunction from evicting the respondent but during pendency of the prohibiting order the Corporation demolished the structure. Resultantly, the respondent suffered damages to the tune of Rs.9,920 on account of loss of various items specified in the Schedule annexed to the plaint. He further claimed a sum of Rs.20,000 as loss of profit. In the plaint future damages during the pendency of the suit, due to his derivation of profit, were also claimed at the rate of Rs.1,200 per month.
2. As despite opportunities given, the written statement was not filed, the learned trial Court proceeded under Order VIII, Rule 10, C . P. C . , closed the petitioner's right to file written statement and recorded the respondent's evidence. He himself appeared in the witness-box, corroborated the contents of the plaint; tendered some documents in evidence and examined one witness. The learned trial Court took the view that the respondent failed to prove his case, and thus, dismissed the suit on 13-2-1979. The respondent then went in appeal. The learned Addl. District Judge who was seized of the appeal, on consideration of the material on the record found that neither allegations in the plaint had been controverted nor the respondent's evidence rebutted. He thus differed with the learned trial Court and came to the conclusion, that there was no reason, to disbelieve the respondent's evidence. The appeal was accepted and the suit decreed for Rs.29,920. The judgment and decree dated 4-5-1981 of the learned first appellate Court, are under challenge in this revision.
3. I have heard the learned counsel for the parties and examined the record. The only point urged on behalf of the petitioner, is that the award of damages on account of loss of profit is excessive and not supported by the evidence on the record. The submission is that in the plaint the respondent himself assessed his business profit at the rate of Rs.1,200 per month; the cause of action accrued to him on 9-7-1975; the suit was filed in January 1976 and thus for loss of profit the damages should have been computed at the said rate for a period of 7 months only.
4. The contention raised by the learned counsel for the petitioner is well support by the facts obtaining on the record. The petitioner himself disclosed in the plaint his monthly profit as Rs.1, 200 only. The period intervening between the accrual of cause of action and the institution of the suit is about 7 months. The amount of damages under this heading, thus, does not exceed Rs.8,400. It being so, the learned counsel for the respondent was unable to controvert such computation, or the basis thereof.
As regards the award of sum of Rs.9,920 as per schedule to the plaint, there cannot be any dispute about it, for, there is no rebuttal. It may be added that future damages though claimed by the respondent were not allowed by the learned first appellate Court. This refusal was not called in question by him. In this view of the matter he is entitled to damages to the extent of Rs.18,320 only.
5. For the foraging reasons, this civil revision is partly accepted and the impugned judgment and decree are varied to the extent that the respondent's suit is decreed in his favour for Rs.18,320 only with costs throughout.
S.A./3043/L Revision partly accepted.
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