Dal Chand Gautam vs Panickers Travels India Pvt. Ltd

,,

Valmiki J. Mehta, J",,

This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit impugning the judgment of",,

the trial court dated 24.8.2017 by which the trial court has dismissed the suit for recovery of damages of Rs.9,51,775/- filed by the appellant/plaintiff",,

against the respondent/defendant no.1. Appellant/plaintiff sought compensation on account of the claim of the appellant/plaintiff that his property was,,

damaged on account of construction being made by the respondent/defendant no.1 in its property.,,

The facts of the case are that the appellant/plaintiff is the owner of the first floor of the property bearing H.No.957, Nai Wala, Karol Bagh, New",,

Delhi situated on a plot admeasuring 50 sq. yards. The respondent (defendant no.1 in the trial court) was the owner of the adjoining property bearing,,

no.958/4, Nai Wala, Karol Bagh, New Delhi situated on a plot of 200 sq. yards. It was pleaded in the plaint that in around December 2008, the",,

respondent/defendant no.1 company demolished the existing superstructure on its property and started constructing basement and other floors.,,

Appellant/plaintiff filed a suit for permanent injunction against the respondent/defendant no.1 and the Municipal Corporation of Delhi (MCD) for the,,

respondent/defendant no.1 not to carry out construction allegedly because construction was being made without any sanction plan. The civil court,,

which dealt with earlier suit filed by the appellant/plaintiff called for the report from the MCD and it transpired that there was a sanctioned plan and,,

that the respondent/defendant no.1 had committed certain compoundable deviations in construction. Since the position emerged that the,,

respondent/defendant no.1 had already completed its building and no further construction was to take place, therefore, the appellant/plaintiff’s",,

earlier suit was disposed of. Appellant/plaintiff pleaded in this suit that on account of the illegal and unauthorized construction carried out by the,,

respondent/defendant no.1 in its property several cracks appeared in the property of the appellant/plaintiff in the roof, walls and floor, and they were",,

damaged. The respondent/defendant no.1 did not stop the construction activity in spite of requests of the appellant/plaintiff. Appellant/plaintiff got the,,

property inspected through M/s A.K. Gupta & Associates to ascertain the quantum of damages, and who assessed the cost of repairs at Rs.4,46,275/-",,

. Appellant/plaintiff also claimed an amount of Rs.5,00,000/- as compensation and notice charges of Rs.5,500/-. Hence the appellant/plaintiff filed the",,

subject suit.,,

Respondent/defendant no.1 contested the suit and pleaded that it had not carried out any illegal construction and that construction was being carried,,

out after obtaining sanction of the plans from the municipal authorities. It was also pleaded by the respondent/defendant no.1 that construction was,,

carried out as per municipal bye-laws and the suit was only filed in order to pressure the respondent/defendant no.1 to shell out an amount to the,,

appellant/plaintiff. Respondent/defendant no.1 pleaded that it got inspected the suit property of the appellant/plaintiff through the Architect M/s Gogia,,

& Associates who has filed a report that the property of the appellant/plaintiff was lying constructed unauthorizedly, was not properly maintained, and",,

was a semi pacca/permanent construction only and there was no damage to the property of the appellant/plaintiff on account of construction by the,,

respondent/defendant no.1. Suit was therefore prayed to be dismissed.,,

After pleadings were complete the following issues were framed:-,,

“Issues:,,

(i) Whether the suit suffers from non-joinder of builder? If so, to what effect? OPP",,

(ii) Whether the defendant No.1 has carried out construction over plot No.1229/1140, QQ Block, House No.958/4, Nai Wala Karol Bagh,",,

New Delhi as per the sanctioned site plan by MCD and the deviations have been regularized?OPP,,

(iii) Whether the house of plaintiff and the ancillaries viz., electricity wiring have suffered structured damage on account of the excavation",,

and the manner of construction by defendant no.1? If so, to what extent? OPP",,

(iv) Whether the plaintiff is entitled to recover a sum of Rs.5,00,000/-or any other amount from defendant no.1 by way of damages for",,

suffering harassment, torture and mental agony due to illegal activities of defendant No.1 and the builder employed by them? OPP.",,

(v) Whether the plaintiff is entitled to recover interest on the amounts, if any, awarded under issues No.(iii) and (iv)? If so, at what rate and",,

for which period? OPP,,

(iv) Relief.â€​,,

Parties led evidence and these aspects are recorded in paras 7 to 14 of the impugned judgment and which read as under:-,,

“7. In order to discharge the onus of proving the issues, the plaintiff examined himself as PW-1, Shri Yogender Sharma, Executive",,

Engineer from Municipal Corporation as PW-2, Shri Anil Kumar Gupta, Architect as PW-3, Shri Chanderkant Babbar, Ahlmad from the",,

Court of Ld. Civil Judge as PW-4, his neighbour Shri Surender Gautam as PW-5, Shri Mukesh Kumar, LDC from Record Room (Civil), Tis",,

Hazari Courts as PW-6 and photographer Shri Amit Sharma as PW-7. Whereas, defendant No.1 examined Shri Gopal Krishnan, its",,

Managing Director as DW-1 and Shri Ashok Verma from Building Department, Karol Bagh Zone, Municipal Corporation as DW-2.",,

The plaintiff in his evidence proved on record title documents in respect of suit property in his favour as Ex.PW1/1 and Ex.PW1/2. The,,

status reports of MCD dated 06.05.2010 and 26.04.2011 filed in earlier suit as Ex.PW1/7 and Ex.PW1/10 respectively.,,

PW-2 Shri Yogender Sharma, EE from MCD in his evidence proved the Sanction Building Plan in respect of the said property as",,

Ex.PW2/1, Indemnity Bond furnished by defendant No.1 to MCD as Ex.PW2/2, Affidavit/undertaking of defendant No.1 as Ex.PW2/3 and",,

the Indemnity Bond for special area as Ex.PW2/4.,,

PW-3 Shri Anil Kumar Gupta, the approved valuer proved his report dated 11.12.2009 with regard to the estimated cost of repair of the",,

suit property as Ex.PW1/8.,,

PW-4 Shri Chanderkant Babbar, Ahlmad from the Court of Ld. Civil Judge (Central) proved on record the plaint, affidavit and notice",,

dated 06.07.2011 in an earlier suit for permanent and mandatory injunction filed by defendant No.1 against the plaintiff, being Civil Suit",,

No.17/12, dated 24.02.2012 as Ex.PW4/1 to Ex.PW4/3 respectively.",,

PW-6 Shri Mukesh Kumar, LDC from Record Room (Civil) proved on record the documents and photographs filed in an earlier suit for",,

permanent and mandatory injunction by the plaintiff, being Civil Suit No.572/09. The special emphasis of this witness was on report of",,

Local Commissioner dated 06.12.2010 as Ex.PW6/4.,,

PW-7 Shri Amit Sharma, photographer has proved on record the various photographs depicting the suit property as well as the said",,

property from the time the said property had been purchased by defendant No.1 till the completion of construction. The said photographs,,

are from Ex.PW7/1 to Ex.PW7/57.,,

Whereas, DW-1 Shri Gopal Krishnan in his evidence proved Authority Letter in his favour vide Resolution of defendant No.1 company",,

as Ex.DW1/1, the Inspection Report of Architects Gogia & Associates, dated 03.03.2011 as Ex.DW1/2 (already Ex.PW6/2) and copy of",,

Sanction Plan of the said property as mark X. Whereas, DW-2 Shri Ashok Verma from Building Department, Karol Bagh Zone, North DMC",,

proved on record the Sanction Building Plan in respect of the said property as Ex.DW2/1 (Colly), Regularisation Plan as Ex.DW2/3 and",,

final Sanction Plan as Ex.DW2/4.""",,

Trial court has dismissed the suit by holding that not only the construction being made by the respondent/defendant no.1 was not unauthorized,,

because it was in terms of a sanctioned plan, it was also held that whatever were the deviations in constructions were got compounded as per law.",,

Trial court has also held that appellant/plaintiff failed to prove that any damage was caused to his property because the appellant/plaintiff's expert PW-,,

3 who came and deposed for the appellant/plaintiff admitted in his cross-examination that he could not prove his qualification for being a qualified,,

surveyor/draftsman and that PW-3 had not employed any instrument for assessing the structural damages to the property. The witness PW-3 also,,

admitted that before submitting his report as Ex.PW1/8 he had not visited the property where the basement was lying dug. Trial court has also held,,

that the case of the appellant/plaintiff lacks credibility because if there were damages caused to the property of the appellant/plaintiff then the,,

appellant/plaintiff would have said so in the earlier litigation but the appellant/plaintiff in the earlier litigation did not mention any damages caused to his,,

property. Trial court has further held that if any damages were caused by the construction made by the respondent/defendant no.1 on the first floor of,,

the property then surely on the floor beneath the property of the appellant/plaintiff on the ground floor which was in possession of one Sh. Manjeet,,

Singh there would have been damages but admittedly Sh. Manjeet Singh never filed any complaint or filed any case with respect to any damage to his,,

property by the construction of the respondent/defendant no.1. Trial court has further observed that appellant/plaintiff regularly took photographs and,,

though appellant/plaintiff pleaded that heavy machinery was used, yet no photographs were filed to show the use of heavy machinery. Accordingly,",,

trial court dismissed the suit by making the following observations:-,,

“20. Issue No. (ii):,,

Whether the defendant No. 1 has carried out construction over plot No. 1229/1140, QQ Block, House No. 958/4, Nai Wala, Karol Bagh,",,

New Delhi as per the sanctioned site plan by MCD and the deviations have been regularized? OPD,,

The onus to prove this issue was upon defendant No. 1. The stand of defendant No. 1 throughout the litigation has been that the,,

construction at the said property was undertaken after obtaining building sanction plan from defendant No. 2/MCD. The copies of sanction,,

plans are on record as Ex.DW2/1 (Colly) and Ex.DW2/4. Since, some deviations were found by the MCD in the construction viz., that the",,

position of lift and staircase was shifted from the middle of the building to the corner, however, the same was permitted to be compounded",,

by the MCD and a regularisation plan was issued, which is Ex.DW2/3. The stand of the plaintiff in this suit as well as the earlier suit",,

bearing No. 572/09, disposed off on 26.04.2011 to the effect that the construction was undertaken by the defendant No. 1 at the said",,

property has remained hollow in the teeth of the aforesaid documents. The plaintiff himself has made admission on record by placing on,,

record documents Ex.PW1/11 (Ex.PW2/1), Ex.PW1/3 (Ex.PW2/2), Ex.PW1/4 (Ex.PW2/3) and Ex.PW1/5 (Ex.PW1/4). The said documents are",,

part of sanction of building plans in respect of the said property. Even otherwise, there are reports filed by MCD in earlier suit which are",,

Ex.PW1/7 and Ex.PW1/10 and the same clearly, categorically and unerringly establish that the building plans of the said property were duly",,

sanctioned and the construction in respect thereof was carried out by defendant No.1 as per the plan and whether deviations were later,,

found were compounded and a regularization plan Ex.DW2/3 was duly issued by the MCD. The issue is accordingly decided in favour of,,

defendant No.1 and against the plaintiff.,,

xxxxx xxxxx xxxxx,,

There are two inspection reports, one Ex.PW1/8, dated 11.12.2009, filed by the plaintiff and the other Ex.PW6/2 (Ex.DW1/2), dated",,

03.03.2011, filed by the defendant No.1. In Ex.PW1/8, it has been mentioned that the suit property is situated at the first floor. It was",,

constructed in the year 1987 with Agra stone over T-Iron roofing and marble chips flooring. The cracks were noticed in the walls and roof,,

by PW-3 at the time of inspection. The southern side wall of northern-eastern room was found fully damaged. When PW-3 came to witness,,

box, he could not prove his qualifications to be a qualified surveyor/draftsmen. He admitted that he had not employed any instrument for",,

assessing the structural damage to the suit property. He also admitted that before submitting his report Ex.PW1/8, he had not visited the said",,

property where the basement was lying dugged. It is worthwhile to note that the aforesaid inspection was got conducted by the plaintiff,,

during the pendency of the earlier suit in which there was no allegation about damage to the suit property.,,

On the other hand, the Inspection Report dated 03.03.2011 Ex.DW1/2 shows that the construction at the suit property was made 27-28",,

years prior to the date of inspection. The construction therein was found to be semi-pukka type and the same was not being maintained,,

properly because of which minor cracks appeared in the cement plaster of the walls and ceiling. It was also observed that no proper,,

waterproof treatment on the terrace had been got done because of which the water seeped through the T-iron of terrace as well as the T-,,

iron of roof causing chipping of cement plastering.,,

The plaintiff in his cross-examination categorically admitted that he had taken out a 5 feet projection through the entire width of the suit,,

property and had covered it with temporary structure, but he tried to justify it by stating that similar projections had been taken out by the",,

other persons of the locality as well. In the same breath, he categorically admitted that the defendant No. 1 had not taken out even an inch",,

of projection.,,

It is interesting to note that the most affected area of the demolition/construction at the said property should have been the ground floor,",,

i.e. the floor beneath the suit property, which is admittedly in possession of Shri Manjeet Singh. In his cross-examination, the plaintiff",,

categorically admitted that said Shri Manjeet Singh never filed any complaint with regard to damage to his property against defendant No.,,

This gives a clear indication that the report Ex.DW1/2 depicts the correct position of facts, i.e. the suit property was not being maintained",,

properly. It had old structure containing large scale unauthorized construction, built with old fashioned iron strips and slabs without any",,

water proofing treatment, which led to seepage and percolation of rain water from ceiling and projection to the walls of the suit property.",,

Now, let us analyse the photographs placed on record. It is interesting to note that the plaintiff has been taking photographs right from",,

the beginning i.e. when earlier super-structure was there at the said property. He clicked a host of photographs when the construction,,

activity was being undertaken by the defendant no. 1. A perusal of photographs Ex.PW7/11 and Ex.PW7/12 goes on to show that a portion,,

of merely 10 ft. x 10 ft. of suit property was in direct contact with the said property and the demolition work was undertaken very cleanly,,

1.,"Cost of Roofing 563.75 sq. @

Rs.500/- per sq. ft.","Rs.2,81,875

2.,"Reconstruction of wall 124 sq. ft.

@ Rs.100/- per sq. ft.","Rs.12,400/-

3.,"Cost of cement plastering 800 sq.

ft. approx. @ Rs.50/-psf.","Rs.40,000/-

4.,"Cost of paint work 800 sq. ft. @

Rs.40/- per sq. ft.","Rs. 32,000/-

5.,Cost of electrification lump sum,"Rs. 25,000/-

6.,Sanitary Work lump sum,"Rs. 25,000/-

7.,"Cost of Repair of Cracks lump

sum","Rs. 30,000/

,TOTAL,"Rs.4,46,275/-