1996 PLP 654 (CLC)

MALIK MUHAMMAD QAYYUM, J.‑‑‑This is plaintiff's Regular Second Appeal against the decree and judgment of the trial Court passed in a suit for recovery of Rs.65,00,000 as damages and mandatory and perpetual injunction by virtue of which the suit of the appellant was decreed only to the extent of Rs.30,000. 2 As the controversy in the present appeal is limited only to the question of quantum of damages awarded by the trial Court, it is not necessary to set out the facts in detail. Suffice it to say that the appellant was the owner of property bearing No.6, Lower Mall, Lahore which adjoins the property of the respondent No. l which bears No. SW‑R‑4, Lower Mall, Lahore. According to the case of the appellant, his property enjoyed right of support from the property of respondent No. l who while carrying out some construction illegally and unlawfully demolished the intervening wall which resulted in colossal damages to the appellant's house. In the suit a sum of Rs. 65,00,000. was claimed as damages. The suit was resisted by the respondent No. l on various pleas which led to the framing of as many as 13 issues on which the parties produced their evidence. A joint request was made to the learned Civil Judge f9r inspection of two properties in terms of Order 18, rule 18, C.P.C. which was allowed.

3. After carrying out the inspection, the learned Civil Judge recorded his inspection note and after hearing the arguments the suit of the appellant was decreed on 17‑9‑1986. It was held that due to wrongful acts of the respondent No. 1, the property of the appellant has been damaged for which respondent No. l was liable to indemnify the appellant. On these findings, the suit of appellant was decreed but only extent of Rs.30,000 which has aggrieved the appellant who has come in appeal to this Court claiming that the suit in toto should have been decreed by the trial Court.

4. In support of this appeal it has been argued by the appellant's counsel that the finding recorded by the trial Court is self‑contradictory in nature inasmuch as while coming to the conclusion that the appellant's property had been damaged on account of wrongful acts of respondent No.1 the trial Court has relied upon the statement of two expert witnesses produced by the appellant but while assessing the damages their testimony has been ignored. Learned counsel has pointed out that the findings on issue No.7 relating to the quantum of the damages are solely based upon the inspection carried out by the Learned Civil Judge.

5. Learned counsel for respondent No. l has, however, defended the impugned decree.

6. There is considerable merit in the contention raised by the learned counsel for appellant. From a perusal of the judgment of the trial Court, it is to be seen that while holding that the loss and damage has been caused to the property of the appellant due to the construction carried out by respondent No. 1, the learned Civil Judge has upon the statement of the expert witnesses namely Bilal Qutab, P.W.3 and Wasif Ali Khan, P.W.7 strangely enough, however, while deciding issue No.6 and assessing the damages payable to the appellant, the testimony of these two witnesses was ignored from consideration and instead the issue was decided on the basis of visual inspection of the property of the appellant by the learned Civil Judge by observing that there were only few minor cracks which could be removed by carrying out necessary repairs, the cost of which was estimated as Rs.30,000. '

7. This approach of the trial Court to the issue involved is clearly erroneous and cannot be upheld. The purpose for carrying out inspection Order 18, rule 18, C.P.C. is only to help the Court in .understanding the controversy and appreciating the evidence on the record. But the inspection carried out by the Court is neither substitute evidence nor it can supersed the evidence on the record. It needs no gainsaying that Court of law is required to decide the matter on the basis of the evidence and not merely on the basis of inspection carried out by the Judge unless there is specific agreement by the parties to be bound by the decision rendered on the basis of personal inspection by the Judge himself. The rationale behind this rule is not difficult to understand. Although while carrying out inspection the Judge is required to' write an inspection note but the fact remains that he is not a witness in the case nor can be cross‑examined and, therefore, it would be dangerous to allow the matters to be decided merely on his own opinion formed on the basis of local inspection (see Muhammad Juman and another v. Mst. Aqlan .and 2 others (PLD 1980 Kar4chi 108). Dr. Nur Muhammad and another v. Khushi Muhammad and 6 others (PLD 1975 Lahore 515), After exhaustive view of the case‑law on the subject it was observed that "inspection was not a substitute for evidence and a judgment based merely upon inspection is not binding unless the parties agree". It may also be mentioned that in the precedent case, while recording inspection note the learned Civil Judge had obtained signatures of the parties and their pleaders under the endorsement that the note was correct. Despite that it was held that the suit could not have been decided on the basis of inspection note.

8. It was the case of the appellant that due to the removal of support wall and construction made by respondent No. 1, his building has been rendered dangerous and required reconstruction. In support of this assertion, the appellant had examined two experts namely P.W.3 and 7 who gave their own estimates regarding cost of construction. It is unfortunate that the learned Civil Judge chose to ignore the statement of these witnesses on the basis of his own inspection. We cannot help observing that the learned Civil Judge was not himself an expert on the subject and, therefore, he would have been well advised to keep his own observation out of the considered while determining as the whether or not the damage caused to the house of the appellant was to the extent that it required reconstruction or was just superficial.

9. In para. 24 of the impugned judgment of the trial Court observed: "As to what extent the damage has occurred to the house of the plaintiff, I would say with full confidence that overall damage to the house of the plaintiff is minor in nature which can easily, safely and properly be repaired. At least, the house of the plaintiff does not need complete demolition and re‑erection as the plaintiff say. At the most, a major repair is needed to the house of the plaintiff. Although the expert witnesses P.W.3 and P.W.7 have deposed that most of the cracks are structural in a nature which cannot be repaired yet I do not agree with this opinion. I myself have inspected the site. Most of the cracks are minor or superficial. No doubt that there are three or four structural cracks in the building but it does not mean that whole multi‑storeyed building should be allowed to be demolished and raised a new one. A few structural cracks can be got repaired under the Supervision of some experienced building contractor. A separate detailed report of my spot inspection is also on the record which may be perused. With repair by any skilled person, the house can be brought to the position when no wrong had been done to it. In nutshell, both these issues are decided with the remarks that demolition and re‑erection of the house of the defendant No. l has caused damage to the house of the plaintiff but this damage is not major requiring complete demolition and re‑erection of the house of the plaintiff. The house can be got repaired safely." To say the least, these observations are wholly conjectural and based on surmises and not on any legal evidence, which has been ignored from considered. In view of the above, we are clearly of the opinion that the impugned decree of the trial Court is not sustainable. In view of what has been stated above, the impugned judgment and decree are set aside and the case is remitted to the trial Court for decision afresh after hearing the parties on the basis of the evidence already on the record. NP order as to costs. H.B.T./A‑918/L‑ Order accordingly.