Modi, J. - (1.) THESE are two connected matters arising out of a suit filed by the plaintiff Fateh Ali for restitution of certain goods removed from his shop by the defendant, and alternatively for their price. Appeal No. 39 of 1952 has been filed by the defendant Anandi Lal and the cross-objection by the plaintiff Fateh Ali.
(2.) THE plaintiff's case was that he was the lessee of a shop belonging to one Narain Lal and was a dealer in umbrellas, locks and other miscellaneous articles, and also carried on a repairer's business. Anandilal is the brother-in-law (wife's brother) of Narain Lal. Narain Lal is said to be mentally infirm and so Anandi Lal was managing the house-hold affairs of Narain Lal. It is alleged that Anandi Lal was anxious to raise the rent of the shop occupied by the plaintiff and as the latter was not agreeable to enhancement of rent, Anandi Lal wanted to evict Fateh Ali from the shop. With that object in view, Anandi Lal went to Fateh Ali's shop on 17. 9. 48 and 18. 9. 48, accompanied by a few labourers, and dismantled the back wall of the shop and forcibly removed the plaintiff's goods that lay there and took them over to Narain Lal's Pol close-by. THE plaintiff's son Jeewaji remonstrated with Anandi Lal but he paid no heed. THE plaintiff further alleged that he informed the police of what had taken place and also complained to the City Magistrate and the District Magistrate, and that the latter wrote to the police and the police took some action but the papers were pending. THE defendant refused to return the plaintiff's goods although the latter demanded them more than once, and hence the plaintiff filed this suit wherein he claimed the return of the goods, in specie, of which he had been deprived and in the alternative for the price of the goods which he assessed at a sum of Rs. 5,766/ -. THE plaintiff also claimed damages for having been kept out of his business. Defendant Anandi Lal pleaded that his sister, Narain Lal's wife was anxious to have the shop vacated because she wanted to execute certain repairs to the shop and that the plaintiff on being informed to that effect had vacated the shop of his own accord, kept part of his goods in Narain Lal's Pol, and removed the rest elsewhere. Defendant completely denied that he had removed or got removed the goods of the plaintiff. Defendant further contended that the plaintiff had assessed his damage at a sum of Rs. 100/- only in the court of the Magistrate and that he had inflated it merely to harass the defendant. Besides, according to the defendant the plaintiff was carrying on the business of repairs of locks and umbrellas etc. only and did not deal in any new goods. The learned trial Judge held that the defendant Anandi Lal was responsible for forcibly removing the goods of the plaintiff from his shop but the damage suffered by the defendant thereby was Rs. 200/- only. The learned trial Judge further held that as the defendant had behaved in a very high-handed manner, exemplary damages must be imposed upon him and these were fixed at Rs. 800/ -. The trial Judge also directed that all such articles of the plaintiff as were lying in the house of Narain Lal and of which a list had been made by the court-ameen shall be returned to the plaintiff. From the above decree, the defendant has filed this first appeal in which he contends that the lower court was wrong in holding that the defendant had removed by force the goods of the plaintiff from his shop,* that the defendant was not responsible in law for any damage which might have occurred as a result of the alleged trespass and further that the court below acted erroneously in assessing the damage to the plaintiff's goods at Rs. 200/- and also in awarding exemplary damages amounting to Rs. 800/ -. The plaintiff in his cross-objection claims that the court below has erroneously held that the defendant was guilty of mere trespass but not of conversion, that the defendant's act really amounted to a conversion, and that the lower court's assessment of damages was inadequate and, therefore, the plaintiff be awarded a sum of Rs. 3000/- by way of damages. We shall take up the appeal first. The plaintiff has examined four witnesses in support of his case. The trial court has, in reliance on the plaintiff's evidence, come to the conclusion that the landlord's wife Mst. Kamlabai and the defendant Anandi Lal wanted to enhance the rent of Fateh Ali's shop in question, that as he was unwilling to have the rent enhanced, they were desirous of evicting him, and that in order to achieve the object in view, Anandilal hit upon the device of executing repairs to Fateh Ali's shop and removed the goods of Fateh Ali from there to Narain Lal's house while such repairs were being executed. From a perusal of the depositions of P. W. 1 Fateh Ali, P. W. 2 Jeewaji and P. W. 3 Kurban Hussain, we are satisfied that the finding of the trial court is unquestionably correct on the above point. The defendant's version that when Mst. Kamla Bai had informed Fateh Ali of her intention to do some repairs to the shop, he had vacated the shop of his own free will and removed his goods partly to his house and partly to Narain Lal's Pol, is too good to be true. The entire conduct of Fateh Ali plaintiff subsequent to the events which took place on the 17th and 18th September 1948 repels that version beyond all manner of doubt. Nor do we entertain any doubt that Anandi Lal who was naturally interested in the management of the household affairs of his sister was the person responsible for the entire affair. We see no satisfactory reason why if Anandi Lal was not responsible for the matter, Fateh Ali should have falsely implicated Anandi Lal and given a go-bye to Narain Lal or his wife. We have no hesitation, therefore, in concurring in the finding of the court below on this point also. Learned counsel for the appellant argued that assuming that Anandi Lal was responsible for the forcible removal of the goods, as alleged by the plaintiff, he was not responsible in law for the consequences thereof, because Anandi Lal was not acting in his personal rapacity but as an agent of Narain Lal, and that as the plaintiff knew very well that he was acting in such capacity, he should have really sued Narain Lal and not Anandi Lal. This contention is, in our opinion, without any force. We have already held that Anandi Lal was the person who was responsible for the forcible entry into Fateh Ali's shop and for the removal of goods from there. He cannot, therefore, divest himself of the responsibility for what he did on the pretext that what he had done was not on behalf of himself but of somebody else. Anandi Lal in interfering with the goods of Fateh Ali was doing so at his own peril. An authority for this view is to be found in Stephens vs. Blwall (1) ( (1815) 4 M. & S. 259.) where a servant was held liable for dealing with goods for his master's benefit and under his! master's orders. It was held there that although the clerk acted under an unavoidable ignorance and for his master's benefit when he sent the goods to his master, he was nevertheless liable because it is no answer for a person who intermeddles with the property of another to say that he acted under authority from another who had himself no authority. We, therefore, hold that Anandi Lal was certainly responsible for what he had done. The next and the more difficult question, however, in this case is the determination of damages to be allowed to the plaintiff. Before we deal with that matter, we consider it proper to dispose of the important question viz. , whether the act of the defendant amounted to conversion or trespass. It was vehemently argued by learned counsel for the plaintiff that the act of the defendant in the circumstances of the case amounted to conversion and not mere trespass, and that the finding of the court below in this respect was altogether erroneous. Now it appears to be well settled that a conversion is the act of wilful interference with the goods of another without lawful jurisdiction whereby such person is deprived of them with the intention of exercising a permanent or temporary dominion over them. In order to amount to 'conversion', there must be such dealing with the goods that it is inconsistent with the right of the person entitled to it, and that there is an intention in so doing to deny that person's right or to assert a right which is in fact inconsistent with such right. Reference may be made to Cakley vs. Lyster (1) ( (1931) I. K. B. 148.) in support of this view. But a mere taking, in our opinion, unaccompanied by any such intention to exercise such a dominion is no conversion although it may be actionable as a trespass de bonis asportatis. So, the mere act of wrongfully removing a chattel from one place to another, without intention to assume possession of it or to deprive the owner of possession, is not in itself a conversion, but is really trespass. Judged in the light of the principle set out above, we are of opinion that the action of the defendant Anandi Lal did not amount to conversion in the present case. All that the defendant wanted to do in this case was to evict the plaintiff from the shop and not to deprive him of his property lying there. As a matter of fact, it appears from the plaintiff's evidence that his goods which had been removed from his shop were being gradually put back in his new shop. The evidence of Jeewaji, plaintiff's son, is significant on this point. He has deposed that the goods in their shop were getting more and more, because the goods removed were being gradually put back by instalments. We have, therefore, no hesitation in holding that the act of the defendant did not reach the level of conversion in this case but amounted to trespass only. We now turn to the principal question as to what damages should be allowed to the plaintiff. The normal measure would, in a case like the present, be the price of the goods of which a person has been deprived. According to Halsbury's Laws of England, in actions of trespass of goods, the measure of damages is the value of the goods if they have been destroyed, or the extent to which they have been depreciated if they still exist, (See Halsbury's Law of England, Second Edition, Volume 10, page 136 ). The plaintiff valued his goods at Rs. 5766/- in the list which he filed with his plaint. On the plaintiff's own showing, this list was prepared by him and his son about a fortnight after the goods had been removed from the plaintiff's shop. No reliance can obviously be placed on such a list for which there is no documentary foundation. It appears that the plaintiff maintained books of account; but he says that they were taken away by the defendant along with the goods. We are not prepared to believe this story. If there were any books of account, the plaintiff would have taken good care to keep them out of harm's way, and there is no allegation whatsoever that he tried to do so but was obstructed by the defendant in that respect. It also appears that a Bahi was shown to the defendant Anandi Lal on behalf of the plaintiff, and a question was put to him whether a particular entry of rent of Rs. 8/- on page 16 of the book bore his signatures. We are not concerned with Anandi Lal's reply to the question but with the circumstance that the plaintiff had still a Bahi in his possession in which the payment relating to the rent of the shop was recorded. We are, therefore, unable to place any reliance on the plaintiff's version that the defendant had taken away the plaintiff's books, assuming that the plaintiff did maintain books of account in which he entered his stock-in-trade as also their purchase price. Apart from this list, the plaintiff's evidence as regards the amount of the loss suffered by him is differently stated by different witnesses. The plaintiff himself assessed his loss with respect to the incident of the 17th September, 1948, at Rs. 130/ -. He did not give any exact or approximate estimate of the loss occasioned to him on the 18th September, 1948, because according to him he was not present when Anandi Lal went to his shop on that day. All that he repeated was that he did not orally remember what was the price of the goods that lay in his shop and that the and his son had prepared a list of the goods (Ex. P-l) which were removed from his shop. In that list the plaintiff valued the lost goods at Rs. 5766/ -. P. W. Kurban Hussain assessed the damage at about Rs. 500/- to Rs. 1000/ -. P. W. 3 plaintiff's son Jeewaji placed at about two or three hundred rupees. Learned counsel for the defendant urged that the plaintiff Fateh Ali in his statement dated 11. 1. 1949 before a Magistrate at Udaipur stated that the amount of loss caused to him was Rs. 100/- only. This statement has been brought on the record and has been duly proved, although Fateh Ali denies to have made it. In this state of evidence it is impossible for us to come to any other conclusion than that the assessment of the actual loss made by the court below at Rs. 200/- is generous and is by no means an under-valuation. The trial court, however, does not appear to have considered the earlier statement dated 11. 1. 1949 made by the plaintiff in which he assessed, his loss at Rs. 100/- only. We do not see that it is possible for us to go beyond the estimate of loss made in that statement before he filed the present suit, and, therefore, we fix the amount of this loss at Rs. 100/-only. Learned counsel for the plaintiff urged that the burden of proving the loss really lay on the defendant and not upon the plaintiff, and referred us to Mst. Kasu Bai vs. Mst. Chandrabhaga (1) (A. I. R. 1948 Nag. 100. ). That case is, however, not applicable to the facts of the present case. In the case cited, the defendant admitted the possession of certain securities and she also admitted to have recovered some amounts due on them. It was held, under such circumstances, that the defendant was clearly guilty of conversion and that it was the duty of the defendant to prove that her act did not cause loss to the plaintiff, and that it was not the plaintiff's duty to show that it did. It was further held that a person who having converted property refused to produce it so that its exact value may be known was liable for the greatest value that such an article could have. We have already held above that the defendant's act in the present case did not amount to conversion and therefore the case cited has no relevance.
(3.) LASTLY it is urged by learned counsel for the defendant that the trial court was in error in allowing exemplary damages amounting to Rs. 800/- to the plaintiff. The contention is that the plaintiff had laid no claim to such damages in his plaint. This argument has force. It is no doubt unquestionable that in an action of trespass to goods, punitive or exemplary damages can be awarded where the manner of taking the goods has been high-handed or oppressive but before such damages are awarded, they have to be pleaded. The gist of the plaintiff's action is that he claimed the price of his goods amounting to Rs. 5766/- in case the goods were not returned to him, and he also claimed damages for having been deprived of his business but he did not state any definite figure which he claimed as such. Both these items claimed were in the nature of special damages and had to be strictly proved by the plaintiff before any decree could be awarded in his favour in those respects. We have already given our finding with regard to the first item, and it is sufficient to state as regards the second that the plaintiff did not furnish any specific particulars of the loss suffered by him on account of the alleged loss of business. That not having been done, it is not possible for us to allow him any damages in this regard. Damages are of two kinds, special and general. Whereas a plaintiff must specifically allege and prove special damages, it is enough to claim general damages as a separate and distinct item in a lump sum and no particulars or details of such damage need be given. The reason is obvious. General damages are those which the law implies in every violation of a legal right and presumes in the ordinary course of events to flow from the defendant's act. General damages include such things as bodily or mental suffering, loss of reputation and similar other matters. It seems to us unfortunate that no such damages were claimed in the plaint and we are of opinion that such a plea could be added later only by an amendment of the plaint which was never applied for at any stage of the case, much less allowed. Besides, the plaintiff must have paid court-fee on such damages also. In the present case, the plaintiffs paid court-fees on Rs. 5766/- being the alleged price of the goods removed and no more. In these circumstances we are constrained to hold that we are unable to award any decree for general damages, exemplary or otherwise, in favour of the plaintiffs and we must set aside the lower court's decree in respect of such damages. In view of our findings stated above, the plaintiffs cross-objection stands dismissed. The net result is that we partially accept the defendant's appeal and reduce the decree of the trial court to a sum of Rs. 100/- only with proportionate costs throughout. The trial court's decree in other respects is maintained. We further direct that, in view of the special circumstances of the case, the defendant shall bear his own costs in both courts. .;