J&K&L High Court Upholds ₹7.2 Lakh Compensation For House Damaged By Road Construction
The Jammu & Kashmir and Ladakh High Court has held that a party cannot withhold evidence supporting its defence during trial and then seek a fresh opportunity to establish that defence by challenging the framing of issues after an adverse judgment.
Justice Shahzad Azeem made the observation while dismissing an appeal filed by the Pradhan Mantri Gram Sadak Yojana (PMGSY) authorities against a decree awarding ₹7.2 lakh to a Ramban resident whose house was damaged during road construction.
Emphasising that the defendants had neither challenged material testimony through cross-examination nor sought additional issues during trial, the Court observed,
“A party cannot keep back its defence, take a chance on the judgment, and then ask the appellate Court to try the defence it did not press.”
The Court upheld the decree passed by the Principal District Judge, Ramban, which had directed the departmental authorities to pay Mohd. Iqbal ₹7.2 lakh in compensation, along with interest at 7.5% per annum from the date of institution of the suit until realisation.
Background:
Mohd. Iqbal had instituted a suit seeking compensation for damage to his double-storey house situated along the Karol-Kumate road in Village Kumate, Tehsil Rajgarh, Ramban.
He alleged that earth cutting undertaken during construction of the road created a risk of landslides. Although the department constructed a protection wall, he claimed that it was built using substandard material and failed to retain the soil. In March 2014, following rainfall, the wall allegedly slipped, causing cracks and damage to his house.
The department disputed liability, contending that ₹1.75 lakh had already been paid towards damage to the earlier house and that the plaintiff had subsequently demolished it and constructed a multi-storey building at the same location without technical approval. It argued that the damage resulted from rainfall and the plaintiff's own negligence.
The Principal District Judge, Ramban, decreed the suit for ₹7.2 lakh, with interest at 7.5% per annum from the date of institution until realisation.
Before the High Court, the department principally argued that the trial court had failed to frame specific issues concerning the alleged use of substandard material in the protection wall and the plaintiff's reconstruction of the house without technical approval. It sought the framing of additional issues and a remand for fresh consideration.
Court's Observations
Justice Azeem framed the central question as whether the defendants, having participated in the trial without objecting to the issues, seeking their amendment under Order XIV Rule 5 of the Code of Civil Procedure (CPC), or putting the relevant questions to the plaintiff's witnesses, could subsequently rely on the omission to seek a remand.
The Court noted that the plaintiff had examined four witnesses whose evidence, read together, supported his case that the house had been damaged by road cutting and the failure of the protection wall to serve its intended purpose.
The defendants had the opportunity to challenge the testimony by suggesting that the damage resulted from the use of proper construction material or from the plaintiff's decision to reconstruct the house without technical advice. However, no such suggestion was put to the witnesses.
Justice Azeem observed,
“Having chosen to participate in the trial without protest, and left the plaintiff's witnesses substantially unchallenged on the very point, they cannot treat non-framing of a more particular issue as a ground to re-open the case.”
The Court explained that the absence of a separately framed issue does not automatically render the trial defective where the parties understood the rival cases and had an opportunity to present their evidence.
It held that the relevant consideration is whether the omission caused prejudice for instance, by misleading a party about the case it had to meet or preventing it from leading evidence.
The Court observed,
“Prejudice is the test. Participation with knowledge of the controversy negatives it.”
The High Court further examined Order XIV Rule 5 CPC, which empowers a court to amend issues or frame additional issues at any time before passing a decree. Justice Azeem noted that the defendants had not invoked this provision during the trial, despite having the opportunity to do so.
“…They needed no separately numbered issue in order to lead that evidence, to put it to the plaintiff's witnesses, or to examine an Engineer. Order XIV Rule 5 of the Code remained open to them until the decree was passed. They did not take recourse to it”, Justice Azeem remarked.
The Court also clarified the limited scope of Order XLI Rule 25 CPC, under which an appellate court may frame an omitted issue and refer it for trial where a material question essential to deciding the suit has not been tried.
It held that this provision cannot be invoked merely because a party seeks a more specifically worded issue after an adverse decree. The power is discretionary and is intended to address a genuine omission necessary for the proper adjudication of the dispute, rather than to provide a fresh opportunity to a party that failed to present its case effectively, the court emphasised.
The Court observed that the proposed additional issues concerned matters already covered by the pleadings and the controversy before the trial court. The defendants' failure to cross-examine the witnesses or lead evidence in support of their defence could not be used to reopen the proceedings.
On the question of liability and compensation, the Court noted that the defendants had produced no evidence to establish their claim that ₹1.75 lakh had already been paid towards the damage in question. The assessment of ₹7.2 lakh made by the Assistant Executive Engineer was also not effectively challenged in cross-examination, and no counter-valuation was produced.
Upon reappreciating the evidence, Justice Azeem found that the plaintiff's testimony, supported by the other witnesses and materially unchallenged by the defence, supported the finding that the damage had resulted from road cutting and the failure of the protection wall.
Finding no illegality or perversity in the trial court's judgment, the High Court affirmed the decree awarding ₹7.2 lakh in compensation and dismissed the appeal. No order as to costs was made.
Case Title: Commissioner Secretary, PMGSY & Others v. Mohd. Iqbal
Citation: 2026 LiveLaw (JKL)
Appearances:
Mehar Bali, Advocate, vice Ravinder Gupta, Advocate, for the appellants, Azmat Ullah, Advocate, for the respondent.