Delhi District Court
Sanjeev Chowdhry vs Raman Kapur on 2 August, 2018
IN THE COURT OF Ms. MONIKA SAROHA,
SENIOR CIVIL JUDGECUMRENT CONTROLLER
SOUTH EAST DISTRICT, SAKET, NEW DELHI
CS No: 50353/2016 (old no. 330/2015)
CNR No. DLSE030000342015
Sanjeev Chowdhry
E78, 2nd Floor, G.K. I,
New Delhi - 110048. .....Plaintiff
versus
1.Raman Kapur E78, Ground Floor, G.K. I, New Delhi - 110048.
Also at:
Kapur Acupunture N9, Greater Kailash - I, New Delhi - 110048.
2. Primal Oswal 10, Sadhana Enclave, Panchsheel Park, New Delhi - 110017.
3. South Delhi Municipal Corporation Deputy Commissioner, Central Ward, G.K. I, Colony GK I, Lajpat Nagar, New Delhi 24.
4. Station House Officer GK I Police Station, Greater Kailash I, New Delhi - 110048. ....Defendants CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 1/15 Date of institution of suit : 13.10.2015 Date on which judgment reserved : 12.07.2018 Date on which judgment pronounced : 02.08.2018 Decision : Dismissed J U D G M E N T Suit for Permanent Injunction This is a suit between neighbours residing at different floors of the same property. The resident of the second floor has initiated this suit alleging that due to the reconstruction carried out at the ground floor, the property at second floor has suffered damage, therefore the reconstruction should be demolished and any further reconstruction must be prohibited by way of an injunction.
Averments of the Plaintiff
1. The plaintiff is the resident of second floor of building no. E 78, Greater Kailash, Part I, New Delhi which is owned by his mother. The grievance of the plaintiff is that the Defendant No. 1 who is the owner of the ground floor in the same building has carried out massive alteration at the ground floor changing even the basic structure of the ground floor. The plaintiff fears that such alterations carried out at the ground floor may result CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 2/15 in collapse of the entire building causing loss of life and property. The plaintiff attempted to persuade the Defendant No. 1 not to carry out such alterations, however to no avail.
Hence, the present suit praying that permanent injunction be granted against Defendant No. 1 and 2 and to restrain them from making any alteration to the ground floor of the property no. E78. Further it is prayed that the illegal and unauthorised alteration already carried out should be directed to be demolished.
Averments of the Defendants
2. In the written statement filed by Defendant No. 1 he has stated that he is a doctor by profession and is therefore entitled to run a clinic from the ground floor of building no. E78, Greater Kailash Part I, New Delhi (hereinafter referred to as the 'suit property'). The defendant has explained that he has only carried out certain ornamental changes in the suit property, to make it more conducive for running his clinic only. It is denied that any structural changes affecting the safety of the building or in violating the municipal bylaws were carried out by him. This defendant has further mentioned that the plaintiff has initiated this suit only to pressurize this defendant to sell the suit property to him at an unreasonably low price.
2.1 Defendant No. 2 also filed his written statement in which he CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 3/15 stated that he is neither the owner nor in occupation of the suit property and therefore has no concern whatsoever with the dispute between the plaintiff and Defendant No. 1. He has stated that he is only the owner of the first floor of the building no. E78 and therefore no reliefs against him can be granted in this suit.
2.2 In its written statement, Defendant no. 3 SDMC denied that any unauthorised construction in violation of the municipal byelaws had taken place in the suit property. It is mentioned in their written statement that when their officials inspected the suit property it was found that only permissible renovation work in accordance with the building byelaws had been carried out and no load bearing walls were removed.
2.3 Defendant no. 4 who is the local SHO did not participate in the trial.
3. On the basis of the pleadings, the following issues were framed on 18.03.2016 by the Ld. Predecessor.
i. Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause a (in the plaint)? OPP ii. Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause a (in the plaint)? OPP iii. Relief.
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 4/15 Thereafter the matter was listed for leading of evidence by the parties.
Plaintiff's Evidence
4. At this stage the plaintiff examined two witnesses. He himself appeared in the witness box as the first witness and reaffirmed the contents of the plaint. He relied upon the following documents in his evidence
1. Mark P1/1 - Sale Deed of property of plaintiff dated 13.12.1988.
2. Mark P1/2 - Complaint made to SHO dated 15.04.2014.
3. Ex. P1/3 - RTI Reply dated 03.12.2015.
4. Mark P1/4 to Mark P1/18 - Photographs showing damages.
5. Ex. P1/19 - Complaint to SHO dated 09.09.2015.
6. Ex. P1/20 - Complaint to SHO dated 10.09.2015.
7. Ex. P1/21 - Complaint to SHO dated 06.10.2015.
8. Ex. P1/23 - Complaint to DCP dated 07.10.2015.
9. Ex. P1/24 - Complaint to Deputy Commissioner SDMC dated 10.09.2015.
10. Mark P1/25 - Online complaint to MCD qua the suit property.
11. Ex. P1/26 - Complaint to SDMC qua the suit property.
12. Mark P1/27 to Mark P1/34 - Photographs of the suit property.
13. Ex. P1/35 - Written opinion of the Architect.
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 5/15
14. Mark P1/36 to Mark P1/48 - Photographs of damage caused in property of the plaintiff.
4.1 Yet another witness examined by the plaintiff was PW2 Dinesh Singh. He was previously an employee of the plaintiff and deposed that he had visited the suit property and taken certain photographs of the same on different dates while alterations in the same were being carried out by defendant no. 1.
4.2 Engineer B.P Singh appeared as the third witness on behalf of the plaintiff. He stated that after inspecting the suit premises he gave his written opinion regarding the danger to the entire building number E 48. His report was exhibited as Ex. PW1/35.
All the plaintiff witnesses were cross examined at length by the opposite counsel.
No other evidence was led and therefore, plaintiff evidence was closed. Matter was then listed for defendant evidence.
Defendant's Evidence
5. The defendant no. 1 also examined three witnesses. He himself appeared in the witness box as the first witness, D1W1. He reconfirmed the averments of his written statement and relied upon the following three CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 6/15 documents
1. Ex. D1W1 (colly) Rough sketch plan of property bearing no. E 78, GK I, New Delhi.
2. Ex. D1W1/2 (colly) Photographs pertaining to defendant no. 1's clinic.
3. Ex. D1W1/3 Certificate under Section 65B of Indian Evidence Act, 1872.
5.1 Thereafter Ms. Archana Agarwal appeared in the witness box as second witness on behalf of Defendant No. 1. She disposed that she is a qualified architect who renders architectural consultancy and also undertakes interior designing work. She deposed that she was engaged by Defendant No. 1 for carrying out the interior designing and the entire renovation work at the suit property was carried out under her supervision. She state that no structural changes affecting the safety of the entire building no. E78 were carried out in the suit property. She further deposed that no load bearing wall/structural walls were even touched or removed at all in the suit property. She specifically stated that the renovation carried out in the suit property was not such as would cause any damage to the entire building no. E74. She exhibited the bill raised by her upon Defendant No. 1 as exhibit D1W2/2.
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 7/15 5.2 The last witness to be examined on behalf of defendant no. 1 was Sh. Vinay Khurana. He is a licensed structural consultant who had inspected the suit property and issued a certificate stating that no load bearing wall or any column in the suit property had been removed. He further stated in his report that only partition walls measuring 4 ½ inches in thickness were removed in the suit property. His report also mentioned that it is not possible for any crack to develop on the second floor of the building no. (E78) due to the renovation work carried out in the suit property.
All these witnesses were subjected to the crossexamination by the plaintiff.
No evidence was led by other defendants and the matter was listed for final arguments. Final arguments as advanced by both the counsels were heard thereafter.
Issue Wise Findings and Appreciation of Evidence Issue no. 1: Whether the plaintiff is entitled to decree of permanent injunction as prayed in clause a (in the plaint)? OPP
6. The permanent injunction sought by the plaintiff is that the Defendant No. 1 and 2 be restrained from making any alteration/ modifications to the suit property. This injunction has been sought on the ground that the renovation/alteration carried out by Defendant No. 1 in the CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 8/15 suit property has caused damage to the first floor of the property and has jeopardized the safety of the entire building. However, as would be discussed in paragraphs that follow the plaintiff could not establish this averment even on the basis of preponderance of probabilities.
6.1 In his evidence by way of affidavit, plaintiff had stated that all the walls in the suit property were load bearing walls and damage to any such wall would lead to collapse of the entire building no. E78. But, the plaintiff who is no expert in matters of structural safety or extent of permissible alteration in any given property was unable to substantiate this averment of his. On the other hand in its written statement filed by SDMC duly supported by the affidavit of the Executive Engineer concerned, SDMC, has stated that it had inspected the suit property soon after the filing of these proceedings and did not find any unauthorised construction being carried out in the same. It is specifically denied by SDMC that any load bearing wall was removed or damaged by Defendant No. 1. The local municipal body is the best authority to opine on the legality of an ongoing alteration in any property and this court has no reason to disbelieve the same, especially since no counter evidence by another expert has been led on this aspect of legality of the alteration. Thus the words of the plaintiff, a lay man and an interested party to this litigation are pitted against the words of the senior engineers working for the local municipal body, which is an independent government authority, routinely involved in assessing the CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 9/15 legalities and safety of construction being carried out in the city. In such circumstances a safe preference to the version of the municipal body can be given. Therefore, there is no merit in this argument of the plaintiff that unauthorized construction was carried out in suit property.
6.2 Coming now to the allegation of the plaintiff regarding the building having been made structurally unsafe due to renovation by defendant no. 1. The professionally qualified architect who carried out the entire alteration/renovation in the suit property herself appeared in the witness box and stated on oath that no load bearing/structural walls were removed in the suit property. She has stated that only partition walls of 4 ½ inch thickness had been removed to refurbish the suit property to suit the needs of Defendant No. 1, a doctor by profession. Although, this witness was thoroughly crossexamined, she stood firm by her chief examination and no material contradiction in her testimony emerged. Therefore, her testimony demolishes the version of the plaintiff that load bearing walls in the suit property had been removed by the Defendant No. 1. Not only this, the third witness, D1W3 who is a professionally qualified structural consultant has also placed on record the report prepared by him after inspection of the suit property supporting the testimony of defendant no. 1. His report Ex. D1W3/1 has been carefully perused. According to this report also no load bearing wall was removed in the suit property and only partition walls which were 4 ½ inches in thickness had been removed. Even CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 10/15 before this court, this witness he deposed on oath that the alterations as carried out by the Defendant No. 1 cannot possibly cause any crack on the second floor of the building. He further categorically deposed that no harm can be caused to the building because of the removal of such partition walls. Although he was also crossexamined by the counsel for the plaintiff but he too stood firm by his testimony and his report. Considering the firm and unshaken testimony of this witness, specially since no objection regarding his professional qualification or experience was raised by the plaintiff, the testimony of this witness further lends weight to the case of the defendant that he did not carry out any structural changes and the testimony of this witness also further weakens the case of the plaintiff.
In contrast, the expert examined by the plaintiff i.e. PW3 does not inspire much confidence. In his report exhibit P1/35 he has only vaguely mentioned that he visited the suit property and after visiting the same came to the opinion that the building no. E78 is structurally not equipped to withstand any structural changes on the ground floor. Whether or not any structural changes were actually caused on the suit property has nowhere been mentioned by this witness. Therefore his statement that the building is not equipped to withstand any structural changes in the suit property is only a vague and generalized one, in contrast to the report of D1W3, the engineer relied upon by the defendant who has specifically CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 11/15 stated that no structural wall/load bearing wall was removed in the suit property. Thus the report of the expert examined by the defendant on this aspect is clearer, more direct and therefore inspires more confidence. Therefore, this court is of the opinion that no load bearing walls were removed by the defendant no. 1 and the alteration carried out posed no threat to the property of the plaintiff.
6.3 Coming now to the allegation of the plaintiff that the alteration carried out in the suit property caused extensive damage to the property where he resides. Even this allegation has not been proved since the evidence led on this aspect by the plaintiff is also too sketchy. In his report Ex P1/35, the expert examined by the plaintiff has no where stated that the damage which he found existing in the second floor was a recent one and result of the ongoing alteration work at the ground floor. This expert has only vaguely stated that he has seen the damage at the second floor but has nowhere given any opinion linking this damage with the alteration work carried out at the ground floor. It must be kept in mind that admittedly the entire building no. E78 is an old construction (around 30 years old) and such an old building which has been subject to wear and tear due to passage of time is likely to have some cracks/other damage to its walls and therefore unless it is specifically stated by an expert that the damage which he found existing was a fresh one and result of the work carried out at the ground CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 12/15 floor, it cannot be held that the damage existing was because of the alteration carried out at the suit property only. In contrast in the report given by the expert examined by Defendant No. 1 he has categorically stated that no damage to second floor can be caused by the alteration caused in suit property. This report is in consonance with the written statement filed on record by the executive engineer of the local municipal body.
Another aspect which must be discussed here is the role of defendant no. 2. He is the owner of the first floor of the building no. E78 whose property is directly above the suit property. However, he has nowhere stated in his written statement that his property also suffered any damage because of the alteration carried out in the suit property. Thus, it belies commonsense that because of any renovation in the ground floor, while damage would directly be caused to the property on the second floor but no damage would be suffered by the property at the first floor.
Therefore, after examining the entire evidence led by the parties it is clear that the plaintiff failed to establish that the alteration carried out at the suit property were a threat to the structural safety of the building or that the alterations were in violation of the municipal byelaws or that his property suffered any damage as a direct result of the alteration carried out by the plaintiff in the suit property.
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 13/15 Therefore, in view of the discussion above, no injunction can be passed restraining the Defendant No. 1 from renovating the property owned by him.
This issue is accordingly decided against the plaintiff and in favour of defendants no. 1 and 2.
Issue no. 2: Whether the plaintiff is entitled to decree of mandatory injunction as prayed in clause a (in the plaint)? OPP
7. In view of the findings given in issue no. 1, since no unauthorised or dangerous alteration in the suit property could be established by the plaintiff, no mandatory injunction can be passed against defendant no. 1 and 2 to demolish the changes carried out by Defendant No. 1 in the suit property.
This issue is accordingly decided in favour of the defendant no. 1 and 2 and against the plaintiff.
Relief:
8. In view of the findings given in issue no. 1 and 2, the plaintiff is not found entitled to any relief.
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 14/15
9. The suit of the plaintiff is accordingly dismissed. Parties to bear their own costs. Originals if any be returned as per rules. Decree sheet be prepared.
File be consigned to record room
Announced in the open court (Monika Saroha)
on 02.08.2018 Sr. Civil JudgecumRent Controller
SouthEast, District Courts,
Saket, New Delhi
CS No. 50353/2016 Sanjeev Chowdhry Vs. Raman Kapur & Ors. 15/15