Delhi District Court
Sudip Kumar Lahiri & Anr vs . Ms. Ratna & Ors on 31 March, 2015
Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors
IN THE COURT OF SH. AJAY PANDEY, ADDL. DISTRICT JUDGE05,
ROOM NO. 605, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA No. 04/14 (Previous RCA No.17/13)
Case ID No. 02406C0136992013
1. Sudip Kumar Lahiri
S/o late Sh. K. K. Lahiri,
R/o S89, Panchsheel Park,
New Delhi110017
2. Major Gen. Sandeep Biswas
S/o Sh. U. N. Biswas,
R/o S89, Panchsheel Park,
New Delhi110017
.............Appellants
Versus
1. Ms. Ratna
R/o 5, Arvind Marg, New Delhi
Also at:
J33, IInd Floor,
Saket, New Delhi110017
2. Anand Estate,
B23, Gulmohar Park,
New Delhi110017
3. M.C.D. (South)
Jawahar Lal Nehru Marg
New Delhi.
..............Respondents
Date of Institution : 31.05.2013
Date of reserving the Judgment : 30.03.2015
Date of pronouncement : 31.03.2015
Decision : Dismissed
RCA No. 4/14 Page 1 of 13
Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors
APPEAL UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE,
1908 (AS AMENDED UPTO DATE) AGAINST THE DECREE AND
JUDGMENT DATED 15.01.2013 IN CIVIL SUIT NO. CS.325/11/10
TITLED AS SUDIP KUMAR LAHIRI & ANOTHER VERSUS MS. RATNA
& OTHERS (HEREINAFTER REFERRED TO AS IMPUGNED
JUDGMENT & DECREE PASSED BY THE COURT OF SH. RAJ KUMAR
TRIPATHY, SENIOR CIVIL JUDGE (SOUTH), SAKET COURTS, NEW
DELHI, THEREBY DISMISSING THE SUIT OF THE APPELLANT
JUDGMENT
1. This is an appeal against the judgment/decree dated 15.01.2013 passed in suit No. 325/11/10 vide which, learned Trial Court dismissed the suit of plaintiff.
2. Arguments on the appeal heard.
3. Brief facts necessary for disposal of appeal are that plaintiff filed a suit for mandatory and permanent injunction against the defendants wherein they prayed for restraining the defendants from raising a proposed four storey building and/or any construction contrary to building by laws of MCD on plot No.S91, Panchsheel Park, New Delhi (herein referred to as suit property). The plaintiffs further prayed for restraining the defendants from constructing/building any basement in the suit property, from causing any further damage to the property particularly the foundation of the house bearing No.S89, Panchsheel Park, New Delhi as shown in red in the site plan, from obstructing free flow of the air and light being enjoyed by the inhabitants of house No. S89, Panchsheel Park, New Delhi, from storing any building material including badarpur, bricks and stones, opposite/in front of H. No. S89, Panchsheel Park, New Delhi, from carrying any RCA No. 4/14 Page 2 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors construction work in the night and from spreading any slush/filth and from raising any construction by using the road opposite to H. No. S89, Panchsheel Park, New Delhi17. The plaintiff also prayed for directing the defendant no.2 to repair the wall shown red in site plan in H. No. S89, Panchsheel Park, New Delhi.
4. It was further prayed for directing the defendants to demolish/remove the illegal construction raised/carried by defendant no.1 in the suit property particularly illegal construction raised in the basement, front and back portion and excessive area coverage in the property.
5. The plaintiffs are residents of plot No. S89, Panchsheel Park, New Delhi17. They are stated to have got the aforesaid property by virtue of a Will dated 01.04.1992 executed by late Mrs. Pratima Maitra in their favour. The suit property is situated adjoining to the house of plaintiff no.1. The plaintiff no.1 alleges that on or about 08.12.2002, he found that labourers had started demolishing the construction of the suit property and on enquiry he came to know that demolition was carried out at the instance of defendant no.1 & 2. He further came to know that the defendants had decided to raise and construct few flats in a proposed four storey building to be raised on the plot and they would also build basement in the plot. The plaintiff is stated to have noticed a crack developed in his wall at point A as shown red in the site plan. He requested the labourers not to cause further damage to his wall but they did not take care. He has stated that on 07.01.2003, he requested the engineer on the spot to instruct the labourer for not causing any further damage. He has alleged RCA No. 4/14 Page 3 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors that the labourer did not stop and kept on causing damage to his property. It is alleged that the labourer had caused substantial damage to the wall of plaintiff and not only cracks are stated to have developed on various parts of the wall but at some places, the wall has also been broken. The plaintiff no.1 states that he availed the services of an architect who opined that whole wall was to be replaced.
6. According to the plaintiff, defendants have no right to construct any basement in the suit property and if they succeed in constructing the same, it would substantially affect the wall of his building. The plaintiff has alleged that the defendant no.1 & 2 have not taken any permission from defendant no.3 for raising the construction in the suit property. Plaintiff alleged that if defendant no.1 & 2 succeed in raising the construction as proposed by them, he would be deprived of getting light and air which he has been getting since 1982. The plaintiff has stated that the construction raised by defendant no.1 & 2 cause disturbance to the inhabitants of the adjoining houses. Plaintiff no.1 apprehended that if the defendants were not stopped from raising the construction, he would face various hardships and nuisance. It was alleged that the building of basement was contrary to the provisions of building bye laws and the same would make the foundation of the house of plaintiff very weak. The plaintiff and his family members fear danger to their lives by the construction raised by defendant no.1 & 2 in the suit property. The plaintiff stated that the defendants did not comply with the rules of Building Bye Laws and as such, their security was in danger. The RCA No. 4/14 Page 4 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors defendants were stated to have covered the areas from where the plaintiff was getting sun light and air in violation of the building bye laws.
7. It was further alleged that the market value of plaintiff's house has been substantially effected due to the illegal construction raised by the defendants. The plaintiff stated that due to the illegal acts of the defendants, he suffered mental torture, harassment and agony besides the economic loss.
8. Defendant no.1 & 2 resisted the suit of the plaintiffs by way of filing joint written statement wherein they contended that the plaintiffs had no locus standi to file the present suit as their legal rights were infringed by them. They further contended that the suit of the plaintiff is bad for misjoinder of parties as the defendant no.2 had no relation with the suit property. They alleged that the plaintiffs filed the suit on the basis of false and fictitious allegations. They contended that it were the plaintiffs who are harassing them and making unreasonable demands for not approaching the court. They challenged the authority of the plaintiffs in filing the suit. The defendants admitted to had demolished the existing structure on the suit property. It was stated that structure was demolished after obtaining the sanction plan for construction on the plot from the competent authority. According to defendants, the plan for construction was obtained from defendant no.3 vide Sanction Building Plan no. 78/B/SZ/2002 dated 23.10.2002. The defendants denied to be constructing four storey apartment for further sale @ Rs.70 lacs per flats as alleged by plaintiffs. They stated that the construction RCA No. 4/14 Page 5 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors is being raised on the suit plot after taking all necessary permissions from the competent authorities and they were very careful that no damage is caused to the adjoining properties. They further stated that the MCD granted them permission for construction of basement on their plot and they are constructing the building as per Sanctioned Building Plan and construction raised by them in the suit property is in accordance with the Building Bye Laws. Rest of the allegations made in the suit, were denied by defendants.
9. Defendant no.3 also contested the suit of the plaintiffs by way of filing written statement. In the written statement, this defendant took the preliminary objection that the suit of the plaintiffs was barred under Section 477/478 of The Delhi Municipal Corporation Act, 1957 (the DMC Act) for want of service of notice before the institution of the suit. This defendant contended that the plaintiffs are not entitled for any relief against it. It was stated that the suit property was inspected on 09.04.2003 and is was found that the owner/builder has carried out unauthorized construction in the form of deviation/excess coverage against the Sanctioned Building Plan no. 78/B/SZ/2002 dated 23.10.2002 at basement, ground floor and infringement in the set back without any permission/sanction from MCD. The defendant took action against the aforesaid unauthorized construction under Section 343/344 of the DMC Act vide U/C file No. 83/B/UC/SZ/2003 dated 09.04.2003. Show cause notice No. 22349 dated 09.04.2003 was stated to had been issued and served upon the owner/builder namely Smt. Ratna Rao as per law. It was RCA No. 4/14 Page 6 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors averred that no reply to the show cause notice was received within the stipulated time, therefore the matter was further processed and demolition notice was issued and served upon the owner/builder asking her to demolish the offending portion of the unauthorized construction booked at the suit premises within six days. The defendant alleged that the owner/builder failed to comply with the notice, hence, demolition order was passed as per law. It was stated that the execution of demolition order would be carried out as per law. The defendant denied the other averments of the plaintiffs.
10. The plaintiffs filed replication to the written statement of defendant no.3 wherein the averments made in the written statement were controverted and denied. The plaintiffs reasserted their stand as taken in the plaint. The plaintiffs have preferred not to file replication to the written statement of defendant no.1 & 2 despite sufficient time and opportunity given to them.
11. Vide order dated 17.11.2003, learned Trial Court framed following issues for adjudication of the matter for trial: i. Whether the plaintiff has not come to the court with clean hands and has suppressed material facts?OPD ii. Whether the plaintiff is entitled to the decree of mandatory injunction as prayed for? OPP iii. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP iv. Relief.
12. On 05.02.2011, additional issue No.3 was framed as follows : RCA No. 4/14 Page 7 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors Issue No. 3 Whether plaintiff is entitled for decree of mandatory injunction as prayed for in prayer (2A)? OPP
13. In the course of trial, the defendant no.1 & 2 stopped appearing in the Court. Therefore, they were proceeded exparte vide order dated 04.10.2006.
14. Vide impugned order, issue no.1 was decided against the defendants and issue No.2 & 3 were decided against the plaintiffs and suit of the plaintiffs was dismissed.
15. Learned Sh. Vinod Khera, Advocate for appellant has submitted that there was no cross examination of plaintiff by either of the defendants and the case of the plaintiff remained un rebutted. He submits that even then, learned Trial Court dismissed the suit against the established principles of law. He further submits that suit was filed against the unauthorized construction raised by defendant no.1 & 2. Learned Trial Court dismissed the suit but directed defendant no.3 to take necessary action in respect of any violation of municipal building bye laws in the suit property, which is selfcontradictory.
16. Learned Sh. Khera further submits that defendant no.3 MCD specifically admitted that there was unauthorized construction over the suit property by defendant no.2, hence dismissal of the suit was wrong. He further submits that learned Trial Court even ignored the damage caused to the property of plaintiff by the unauthorized construction. Learned Sh. Khera further submitted that because of impugned judgment dated 15.01.2013 overlooked the fact that the sanction plan was valid till 12.01.2005 and there was nothing on record that defendant no.1 & 2 had got a new or RCA No. 4/14 Page 8 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors renewed the said sanction plan on the date of the judgment dated 15.01.2013. Hence, the property of the respondent no.1 & 2 was without any sanction plan. He also submits that learned Trial Court overlooked the collusion between the respondent no.1 & 2 and respondent no.3. He specifically submits that while dismissing the suit of the plaintiff/appellant, the learned Trial Court did not rely upon photographs filed by plaintiff. Though, that was never challenged by any of the respondents and there was no occasion that the learned Trial Court to disbelieve the same.
17. Learned Sh. Pratap Singh, Advocate for respondent no.3 has submitted that all the arguments advanced while appeal were considered by the learned Trial Court while passing judgment and decree dated 15.01.2013.
18. The court has considered the arguments advanced by learned counsels for appearing parties.
19. It is rightly submitted by learned Sh. Singh that even when none appeared for defendant no.1 & 2 and/or no evidence was led on their behalf, plaintiff was supposed to prove his case independently. Onus to prove the unauthorized construction over the suit property, its extent, its consequences and damage to the property of plaintiff, was required to be proved by plaintiff independently.
20. In the plaint, the plaintiff had stated that there was no sanction plan with the defendant for construction of his property but in the appeal, it is specifically mentioned that the sanction plan was valid till 12.01.2005. The suit was instituted on 03.02.2003. The plaintiff has not stated when he got to know that RCA No. 4/14 Page 9 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors there was a sanction plan for construction over the property by defendant. MCD as well as defendant no.1 & 2 had taken a plea that defendant constructed the property in accordance with sanction plan. Even sanction plan number is mentioned in the written statement. In addition to that, it is also stated on behalf of MCD that there was some deviation in the sanctioned plan by defendant no.1 & 2.
21. The plaintiff could have called the sanctioned plan on record by giving notices to defendant no.1 & 2 or to defendant no.
3. The plaintiff could have also called the official witness to prove the sanction plan. Neither there is any attempt on behalf of plaintiff to prove the sanction plan nor any effort was made by the plaintiff to prove addition or alteration in the property, which were not in accordance with sanctioned plan.
22. It is rightly submitted by learned Sh. Singh that a blanket demolition order cannot be passed against the entire property for certain additions/alteration ignoring the portion, which has been constructed by defendant according to the sanctioned plan.
23. The suit was filed by plaintiff hence, the primary onus to prove the unauthorized construction and extent thereof was upon the plaintiff. The plaintiff miserably failed to do so. Hence, the learned Trial Court rightly decided the issue of mandatory injunction against the plaintiff.
24. In paragraph 4 of the appeal, plaintiff has itself mentioned that on the date of his cross examination, four storey building was in existence. Hence, the relevancy of permanent injunction had already become infructuous.
RCA No. 4/14 Page 10 of 13Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors
25. Moreover, the plaintiff alleged that the defendant was constructing basement in his property which was causing security threat to his property. The order for grant of mandatory injunction for demolition of defendant's property at this stage may further endanger the property of plaintiff. There is no material that if the supporting wall and structure of defendant to construct basement is removed, there would be no danger to the property of plaintiff. It is not feasible to grant relief of demolition of entire property at this stage.
26. In his judgment, learned Trial Court has observed that site plan of the suit property has not been filed by the plaintiff showing unauthorized and illegal construction alleged to have been carried out by defendant no.1 & 2. Learned Trial Court also observed that the plaintiffs failed to prove on record that due to acts of the defendant, walls of plaintiffs received cracks.
27. It was observed that photographs relied upon by plaintiff in this respect were not proved in accordance with law. The negatives of the photographs were not produced. It was also observed that even the portion of the plaintiff's wall to which the photographs were belonging, were not clear from the photographs.
28. Learned Sh. Khera, counsel for plaintiff relied upon judgments in cases titled as Rajinder Pershad v. Smt. Darshana Devi, AIR 2001 Supreme Court 3207, Satyendra Kumar Sharma vs. Jitender Kudsia, 119 (2005) Delhi Law Times 498 and Mahant Mela Ram v. Shiromani Gurudwara Parbandhak Committee, AIR 1992 Punjab & Haryana 252, to submit that in the absence of RCA No. 4/14 Page 11 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors cross examination, it has to be presumed that there was no dispute about the correctness of statement of plaintiff and the court must give an opportunity to the plaintiff to explain any part of his statement which is not believed as true.
29. It is rightly submitted by learned Sh. Singh that when the defendant was constructing his property after obtaining the necessary permission and in accordance with approved sanction plan, mere statement of plaintiff was not enough to claim the damages from him. In the plaint, plaintiff had stated that he availed the services of an Architect to know that his whole wall was to be replaced. Twelve years have passed since institution of suit. The plaintiff did not make any statement that the wall was actually replaced/restructured/repaired and if so, what amount of expenditure was incurred by the plaintiff for that. Even the affidavit in evidence of plaintiff was filed on 25.03.2011, copy of which, was produced by learned counsel for plaintiff during the course of arguments. There is no mention of these facts in his affidavit.
30. It is further rightly submitted by learned Sh. Singh that all these facts were required to be proved by plaintiff by positive evidences. The court could not have passed blanket order for repairing the entire property of the plaintiff without specific proof of damage by defendants. Even if the light and air of plaintiff is diminished by raising of the construction by defendant in accordance with sanction plan, defendant cannot be restrained from exercising its ownership/possessiorary rights over his property in accordance with law of land. The financial losses, if RCA No. 4/14 Page 12 of 13 Sudip Kumar Lahiri & Anr vs. Ms. Ratna & Ors any, and the reduction of value of the property of plaintiff is also immaterial in view of maxim of damnumsineinjuria. The court is not supposed to compensate the plaintiff for damages which are not caused by violation of law or which are natural consequences while exercising of his legal rights by defendants.
31. In the facts and circumstances, the court do not find any reason/ground for interfering in the impugned judgment. Plaintiffs were supposed to stand on their own legs. The relevant pleadings, documents were required to be proved by the plaintiffs themselves for establishing the case. The important suggestions and discoveries are not appearing on record. The court has no reason to tilt the preponderance of probabilities in favour of plaintiffs, when the plaintiffs did not prove the relevant facts and materials on record. No merits in appeal.
32. Appeal is, accordingly dismissed.
33. File be consigned to record room after due compliance.
Announced in the open (AJAY PANDEY)
Court on 31.03.2015 ADJ05 (SOUTH DISTRICT)
(Judgment contains 13 pages) SAKET COURTS, NEW DELHI
RCA No. 4/14 Page 13 of 13