Delhi District Court
Jhumur Chatterjee vs Hemant Gupta on 16 October, 2024
IN THE COURT OF SH. SONU AGNIHOTRI
DISTRICT JUDGE-07, SOUTH EAST SAKET COURTS,
NEW DELHI
Civil Suit No. 8005/2016
CNR No.: DLSE01-001117-2015
JHUMUR CHATTERJEE
W/o Sh. P. K. Chatterjee
R/o : PKT-AJ13, 37-B (FF),
Fort View Apartments,
Kalkaji Extension, New Delhi-110019.
.......... Plaintiff
Versus
HEMANT GUPTA
R/o : PKT-AJ13, 37-C (2nd floor),
Fort View Apartments,
Kalkaji Extension, New Delhi-110019
......... Defendant
SUIT FOR DAMAGES AND COMPENSATION
Date of institution : 16.01.2015
Date when judgment reserved : 16.07.2024
Date of Judgment : 16.10.2024
JUDGMENT
1. Vide this judgment, I shall dispose of present suit filed by plaintiff against defendant for damages and compensation along with CS No. 8005/2016 Page No. 1 of 23 Jhumur Chatterjee Vs. Hemant Gupta interest.
2. The case of plaintiff in brief as averred in plaint is as under:
3. It is stated that plaintiff is residing at the address as mentioned in memo of parties. It is stated that one Mr. Hemant Gupta / defendant purchased upstairs flat to flat of plaintiff i.e. 37-C, Second Floor and shifted there on 26.01.2014.
4. It is stated that before defendant shifted, plaintiff informed him about damaged pipelines of his floor which earlier led to seepage in one of the bathrooms of plaintiff. Defendant assured plaintiff that he will soon repair all the pipelines, however, he in return asked plaintiff to give him permission to build extra floor from balcony of plaintiff.
5. It is stated that plaintiff is a patient of Sinusitis and Bronco Asthma and is undergoing treatment from Dr. P. P. Bose since last 10 years. Plaintiff needs open space, full of sunlight, free from dampness and dust etc and therefore, plaintiff told defendant about her health condition and further told that she will not be able to give such permission due to her health condition. However, plaintiff gave him permission to build extra floor at the roof, just like other second floor residents are doing in the locality.
6. It is stated that on 23.03.2014, plaintiff informed defendant about urine and other waste water coming out from his urinal pipeline to floor of plaintiff. Defendant stated that would not repair anything till plaintiff gives him permission to build extra floor from her balcony.
CS No. 8005/2016 Page No. 2 of 23Jhumur Chatterjee Vs. Hemant Gupta
7. It is stated that defendant used slangs like "Main Kisi Se Nahi Darta, Jo Karna hai Kar lo, ab jo karna hai mai karunga and ab toh tatti peshab sab aayegi".
8. On the next day on 24.03.2014, plaintiff and her husband were out for some work. Plaintiff's 22 years old daughter was in the house. She heard hitting sound with the heavy hammer just over plaintiff's kitchen and within few seconds, three sides of kitchen wall cracked and water started dropping from it. Defendant intentionally did this to harass plaintiff mentally.
9. It is stated that daughter of plaintiff called her parents. Plaintiff came and dialed 100 number. RWA Secretary Mr. Vinod Chopra also witnessed everything. PCR came after half an hour and plaintiff narrated complete story to HC Somvir who advised plaintiff to give written application to PS Govind Puri and plaintiff sent complaint to concerned police station.
10. It is stated that on 25.03.2014 at about 10:00 PM, HC Kunji Lal and Rajendra Prasad visited house of plaintiff. On 27.03.2014 at around 07:30 PM, Beat Ct. Ravinder Singh visited house of plaintiff but none of these police officials talked with defendant.
11. It is stated that after that night, defendant came drunk, played extremely loud music in his car and used slangs like "Main Iss Ghar Ko Khandar Bana Dunga and Police Meri Jeb Main Hai". Defendant also made life threatening comments on plaintiff's family.
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12. It is stated that plaintiff called flying squad of Vigilance Branch and Women's Help Line as a result whereof, on 08.04.2014, SI Manjeet Singh Dawas and Beat Ct. Ravinder Singh from PS Govind Puri visited house of plaintiff and clicked photographs of kitchen, listened to recording of defendant and checked health prescription of plaintiff. They also checked defendant's kitchen and saw his broken kitchen floor filled with water.
13. It is stated that water quickly spread to plaintiff's whole kitchen and damaged entire electrical appliances of plaintiff like Geyser, Chimney, light board switches, water purification machine and wood work done in the kitchen. Even, Canopy wall of plaintiff's kitchen also broke and fell. Defendant threw a cigarette on net fitted at plaintiff's balcony which got burnt from one side and luckily, plaintiff saw cigarette in time and damage to inverter and AC fitted in the balcony was averted.
14. It is stated that from early morning of 18.06.2014, water flowed heavily which had an stinking smell. Defendant again made life threatening comments for plaintiff's son "Bahar Nikal Ke Aa Mar Dunga and Main Gunda Hoon, Sab Ko Mar Dalunga".
15. It is stated that there are chances of short circuit on account of which there is life threat to plaintiff and her family members. Stinking smell comes out of the water on account of which, there is heath and hygiene issue. Health of plaintiff is also deteriorating because of constant threatening by defendant. Plaintiff's water tanks are on the roof CS No. 8005/2016 Page No. 4 of 23 Jhumur Chatterjee Vs. Hemant Gupta and plaintiff fear that defendant can mix anything to water thus endangering life of plaintiff and her family.
16. It is stated that defendant is a dangerous man and can do anything. It is stated that the first day, defendant shifted to plaintiff's pocket, he fought with knives with his step brother. RWA filed case against him and his step brother at PS Govind Puri.
17. It is stated that plaintiff has sent complaints everywhere like Delhi Commission for Women, PS Govind Puri, ACP Kalkaji Police Station, SHO PS Govind Puri and CP, Delhi. An FIR has also been lodged against defendant which is pending investigation. It is stated that even after the FIR, defendant is still harassing plaintiff and her family members. Plaintiff's children are office goers and husband of plaintiff has high BP and so, there is always a threat looming large.
18. It is stated that due to above mentioned intentional and deliberate act on part of defendant, flat of plaintiff got substantially damaged on account of which, it need complete renovation.
19. It is stated that plaintiff contacted the contractor who gave quotation of total Rs. 11,75,000/- for doing POP, Putti, Paint, labour, for making modular kitchen, replacing kitchen wall tiles, two bathroom wall tiles and for replacing kitchen and bathroom water pipe, GI and for changing electrical pipe and fittings. It is stated that besides this, plaintiff also suffered huge expenses for litigation and for engagement of counsel.
CS No. 8005/2016 Page No. 5 of 23Jhumur Chatterjee Vs. Hemant Gupta
20. It is stated that plaintiff asked defendant to pay the amount or to get plaintiff's portion restored to its original position but to no avail.
21. Plaintiff has prayed for passing decree in sum of Rs. 11,75,000/- towards damages and compensation in favour of plaintiff and against defendant alongwith pendente lite and future interest @ 18% per annum till realization.
22. Summons of the suit were ordered to be issued to defendant vide order dated 16.01.2015. Defendant put up appearance through counsel and filed written statement.
23. Defendant in his written statement stated that by declaring herself a senior citizen, plaintiff is trying to take advantage of the same. It is denied that plaintiff informed defendant in advance regarding damaged pipelines of defendant's floor which earlier also led to seepage in one of the bathroom of plaintiff at her floor. It is stated that if defendant had prior knowledge about damaged pipelines, he would not have shifted to new house without getting repaired the said defects. It is stated that it seems that plaintiff is in habit of raising frivolous issues with upper storey owner just to harass them so that they leave upper portion house leaving plaintiff alone to enjoy single status in the building. It is stated that it has been admitted by plaintiff herself that when defendant purchased the said flat, even then, there was seepage in one of the bathrooms. Why, plaintiff remained silent for number of years is for plaintiff to tell. It is denied that plaintiff allowed defendant to build extra CS No. 8005/2016 Page No. 6 of 23 Jhumur Chatterjee Vs. Hemant Gupta floor on the roof. It is stated that defendant is exclusive owner of roof and can build extra floor after due permission from authorities and there is no need to seek any permission from plaintiff for the same.
24. It is denied that on 23.03.2014, urine or other waste started coming from pipeline of defendant to the floor of plaintiff. It is further denied that defendant ever said that he will not repair anything unless plaintiff gave him permission to build extra floor from balcony of plaintiff. It is stated that all this is a concocted story to exert pressure upon defendant.
25. Defendant has denied slangs allegedly stated to have been used by defendant and has stated that defendant reserves right to initiate appropriate legal proceedings against plaintiff for the same. It is denied that defendant is intentionally doing anything to harass plaintiff. It is stated that defendant is mature person with family responsibilities and that he will never commit any such overt act which in all eventuality would cause harm to him only. It is stated that rather it is plaintiff who always try to irritate defendant by making non-sense statements against defendant before public at large which has been witnessed by entire society. It is denied that defendant ever rang bell of plaintiff at night.
26. It is stated that making of complaint was a deliberate attempt on part of plaintiff to humiliate defendant by lodging false complaint and just to build up false case. It is denied that in early morning of 18.06.2014, water flowed heavily and stinking smell started in portion of CS No. 8005/2016 Page No. 7 of 23 Jhumur Chatterjee Vs. Hemant Gupta plaintiff. It is stated that plaintiff is having ill will towards defendant and his family and her sole purpose is to defame defendant in the society.
27. It is denied that there are chances of short circuit on account of any deliberate act or omission on part of defendant. It is stated that it has been fairly admitted by plaintiff that earlier problem was already persisting before plaintiff came to reside in the said flat. It is denied that health of plaintiff is deteriorating on account of threat given by defendant. It is stated that mixing of any poisonous substance on part of defendant in water tank of plaintiff is highly unimaginable.
28. It is stated that registration of alleged FIR is an invention of polluted mind of plaintiff who instead of being a good neighbour is causing havoc in lives of defendant's family. It is stated that in order to restrain defendant from building extra portion, to carry out repairs in his own floor and to show her supremacy in the building, plaintiff is taking all coercive measures to demoralize defendant.
29. It is denied that defendant has deliberately or intentionally caused any damage to underneath floor of plaintiff. It is stated that old pipelines have got rotten in number of years as they were fitted around 30 years ago. It is stated that it is admitted by plaintiff herself that root cause of seepage is quite old. It is stated that by no stretch of imagination, problem of alleged seepage in the house of plaintiff can be said to be genesis of defendant's mind as advocated by plaintiff.
30. It is denied that defendant is adopting any cheap tactics to CS No. 8005/2016 Page No. 8 of 23 Jhumur Chatterjee Vs. Hemant Gupta harass sick plaintiff. It is stated that infact lodging of false FIR by plaintiff has already caused immense trauma to defendant and his entire family. It is rather defendant who is suffering harassment at hands of plaintiff. It is stated that as narrated above, by filing of present suit, it becomes evident that plaintiff has targeted defendant to satisfy her ulterior objectives. It is stated that defendant has no previous enmity with plaintiff as he started residing above house of plaintiff from 26.01.2014 onwards.
31. It is stated that personal health problems of plaintiff and her family have nothing to do with defendant on personal front as well as with alleged damage in portion of plaintiff. The averments in this regard are absurd and without any iota of evidence. It is stated that infact, it is house of defendant which is getting damaged day by day due to negligent attitude on part of plaintiff as plaintiff is not coming forward to shell out her part of share in repairing roof and other damaged pipes. This position has been brought to notice of plaintiff umpteen times but to no avail. It is stated that alleged miseries suffered by plaintiff are infact just 10% of miseries being suffered by defendant and his family. In order to wriggle out from her own responsibilities, plaintiff is making these bogus allegations. It is reiterated that pipelines of whole block starting from roof where tanks are installed are totally damaged and leaking from different points needing urgent repairs.
32. It is stated that one living room, furniture of that room, whole kitchen pipeline, bathroom wall, floor tiles, English toilet seat, Geyser, CS No. 8005/2016 Page No. 9 of 23 Jhumur Chatterjee Vs. Hemant Gupta whole kitchen switch board and roof of defendant have been damaged as a result of continuous leakage from water tanks of plaintiff. It is stated that besides that there is continuous threat of trespasser entering into house of defendant as an extra shed has been erected adjacent to balcony wall of defendant.
33. It is stated that it is plaintiff who has initiated frivolous litigation causing monetary losses to defendant besides causing immense mental trauma to defendant. It is denied that defendant is liable to pay any kind of damages or to restore flat of plaintiff to its original position. Daily wear and tear of flat of plaintiff is not responsibility of defendant. The alleged damages are due to plaintiff's continuous acts of negligence who never paid attention even to request of previous owner of the said flat viz. Mr. Vijay Amre as well as defendant since purchase of the said flat. Plaintiff's callous attitude has turned a normal situation into a havoc. It is stated that quantum of alleged damages and consequent compensation has been highly exaggerated by plaintiff as cost of new fittings and colouring as alleged to be damaged at floor of plaintiff would not cost so much. It is stated that entire block/building was build around 30 years ago by DDA and it is universally known that what sort of material is being used. It is stated that it was agreed that all pipelines and ancillary fittings would be changed and cost will be borne jointly and collectively by all occupants of the said building. It is denied that defendant ever asked permission from plaintiff to build extra floor from CS No. 8005/2016 Page No. 10 of 23 Jhumur Chatterjee Vs. Hemant Gupta balcony of plaintiff.
34. It is prayed to dismiss frivolous suit filed by plaintiff with exemplary costs.
35. No replication to written statement of defendant was filed on behalf of plaintiff.
36. On the basis of the aforesaid pleadings of the parties, issues were framed on 19.05.2015 which are as follows:-
1. Whether the waste water is coming out from the urinal pipe line of the defendant, to the floor of the plaintiff, if so, its effect? OPP
2. Whether such waste water is causing damage to the healthy living of the plaintiff and her property?
OPP
3. Whether the plaintiff is entitled for the recovery of damages? OPP
4. Whether the plaintiff is entitled for recovery of damages of Rs.11.75 lacs as prayed in prayer clause? OPP
5. Whether the plaintiff is entitled for interest @ 18% per annum or at any other rate? OPP
6. Relief.
37. In order to prove her case, plaintiff examined herself as PW-1 CS No. 8005/2016 Page No. 11 of 23 Jhumur Chatterjee Vs. Hemant Gupta and exhibited her evidence affidavit vide Ex.PW1/A. In her deposition, PW1 relied upon and exhibited following documents:-
S.No. Description of Document Exhibit/Mark
1 Complaint dated 24.03.2014 to Mark A
SHO PS Govind Puri
2 Complaint dated 26.03.2014 to Mark B
Police Commissioner, Delhi
3 Letter dated 27.03.2014 to Supdt. Mark C
Engg., MCD
4 Letter dated 29.03.2014 to Delhi Mark D
Police Commissioner
5 Letter dated 29.03.2014 to Dy. Mark E
Commissioner Delhi Police
6 Acknowledgment of letter dated Mark F
31.03.2014
7 Letter dated 31.03.2014 to Joint Mark G
Commissioner of Delhi Police
8 Letter dated 03.04.2014 to Joint Mark H
Commissioner of Delhi Police
9 Letter dated 06.04.2014 to RWA Mark I
10 Letter dated 11.07.2014 to Asst. Mark J
Commissioner, Crime against
Women, Delhi Police with postal
receipt
11 Letter dated 11.07.2014 to Asst. Mark K
Commissioner, Delhi Police with
postal receipt
12 Letter dated 19.07.2014 to Joint Mark L
Secretary, Public Grievance Cell,
Delhi
13 Letter dated 21.07.2014 to Delhi Mark M
CS No. 8005/2016 Page No. 12 of 23
Jhumur Chatterjee Vs. Hemant Gupta
Commissioner for Women
14 Letter dated 28.07.2014 to LG Mark N
Office
15 Letter dated 07.08.2014 to RWA Mark O
16 Letter dated 08.08.2014 to RWA Mark P
17 Letter dated 13.08.2014 to Asst. Mark Q
Commissioner of Delhi Police
18 Letter dated 11.08.2014 to Delhi Mark R
Commission of Women with original
envelop
19 Letter dated 31.08.2014 to SHO PS Mark S
Govind Puri
20 Letter dated 04.11.2014 to SHO PS Mark T
Govind Puri
21 CD-1 to CD-4 showing all damages Ex.PW1/21
and slangs in flat of plaintiff
22 Photographs showing damages in Ex.PW1/22 (Colly)
flat of plaintiff.
23 Affidavit U/sec 65 B of Indian Ex.PW1/B
Evidence Act dated 07.03.2019
24 True Typed transcript of CD-1 Ex.PW1/21X CD1
alongwith still shots
25 True Typed transcript of CD-2 Ex.PW1/21 CD2
alongwith still shots
26 True Typed transcript of CD-3 Ex.PW1/21 X CD3
alongwith still shots
27 True Typed transcript of CD-4 Ex.PW1/21 X CD4
alongwith still shots
38. Plaintiff further examined Mr. Prahlad Meena, Jr. Engineer, CS No. 8005/2016 Page No. 13 of 23 Jhumur Chatterjee Vs. Hemant Gupta Central Zone, South Delhi Municipal Corporation, Lajpat Nagar, New Delhi as PW-2.
39. Plaintiff examined Retd. SI Deshraj as PW-3.
40. Plaintiff examined Mr. Mohd. Akhtar as PW-4 who exhibited estimate of damages/material quotation with regard to Flat No. 37B, Pocket-13, Kalkaji Extension, Fortview Apartment, New Delhi vide Ex.PW-4/A.
41. Plaintiff examined Mr. Pawan Kumar, Junior Engineer, Building Department, SDMC, Lajpat Nagar, New Delhi as PW-5. In cross-examination of PW-5, covering letter of Mr. Ramesh Bidhuri, MP dated 31.08.2017 accompanied with complaint dated 16.08.2017 was exhibited vide Ex.PW-5/D1.
42. Plaintiff further examined Mr. Rajiv Kumar Sinha, Ahlmad in the court of Sh. Harun Pratap, the then Ld. MM as PW-6 who exhibited some certified copies of charge-sheet, complaint, order-sheets in FIR No. 1241/2014 under Section 336/426 IPC, PS Govind Puri in case titled as "State Vs. Hemant Gupta" vide Ex.PW-3/A (Colly).
43. Plaintiff's evidence was closed vide order dated 24.09.2018.
44. In order to prove his defence, defendant himself examined as DW1 who exhibited his evidence affidavit vide Ex.DW1/A.
45. I have heard final arguments addressed by respective counsels and perused the record including written arguments/submissions filed on behalf of plaintiff and defendant and CS No. 8005/2016 Page No. 14 of 23 Jhumur Chatterjee Vs. Hemant Gupta judgment filed on behalf of defendant.
46. My issue-wise findings are as below:-
ISSUES No. 1 & 21. Whether the waste water is coming out from the urinal pipe line of the defendant, to the floor of the plaintiff, if so, its effect? OPP and
2. Whether such waste water is causing damage to the healthy living of the plaintiff and her property? OPP
47. Onus to prove these issues was upon plaintiff. These issues are being taken up together being inter-connected.
48. Plaintiff/PW1 in her evidence affidavit in para No. 7 deposed that on 23.03.2014, plaintiff informed defendant about urine and other waste water coming out from his urinal pipeline to floor of plaintiff.
49. Plaintiff in her cross-examination stated that as stated in para No. 7 of her affidavit Ex.PW-1/A, urine and other waste water was coming from the pipe located at outer wall.
50. Plaintiff in her cross-examination stated that when she purchased the said flat from Mr. Ralhan, he was not residing in the said flat. She admitted that when she purchased the said flat, it was not in good shape. She stated that she had spent more than Rs.10,00,000/- in CS No. 8005/2016 Page No. 15 of 23 Jhumur Chatterjee Vs. Hemant Gupta renovation of the said flat. Plaintiff in her cross-examination stated that she purchased suit property on 20.10.2009. She further stated that the said building where her flat is situated was about 20-22 years old at the time when the same was purchased by her. She stated that she had not repaired the drainage pipe coming from the roof top. She stated that the said drainage pipe, receiving the entire rain water is located outside the wall. Plaintiff denied the suggestion that all the drainage pipes coming from the roof have damaged the entire building as the same have not been repaired by the individual flat owners. She stated that earlier owner was also informed about some leakage in the pipeline outside wall of her flat and the same was got repaired and thereafter, no seepage problem was there in their flat. She stated that she does not know whether repairing of roof including mumty, water tanks of the building, the common staircase leading to the roof, the waste pipes are the joint responsibility of flat owners occupying the building. She volunteered that she repair her own portion.
51. Plaintiff has placed on record various complaints made by her to various police authorities, to MCD and RWA which have been marked on record. These complaints have not been proved on record by plaintiff. Plaintiff has exhibited certain video recordings in form of CDs and affidavit in support of the same under Section 65B of Indian Evidence Act vide Ex.PW-1/B. Certificate under Section 65B of Indian Evidence Act Ex.PW-1/B filed by plaintiff on record shows that plaintiff has not CS No. 8005/2016 Page No. 16 of 23 Jhumur Chatterjee Vs. Hemant Gupta mentioned complete details of her mobile from where still photos and video recordings were clicked/taken. Plaintiff has merely mentioned make and model of cameras from which, she clicked still photos and made video recordings but not mentioned their serial numbers nor has proved any proof of their purchase by plaintiff. Plaintiff in her affidavit Ex.PW-1/B has stated that still photographs and video recordings are genuine and authentic and have not been altered or tempered with in any manner but plaintiff has not deposed that she was having exclusive possession of mobile phone and cameras as mentioned in affidavit under Section 65B of Indian Evidence Act which did not provide opportunity to anyone else to temper with still photographs and video recordings recorded vide these instruments. In these circumstances, video recordings and still photographs filed by plaintiff vide Ex.PW-1/21X CD-1 to Ex.PW-1/21X CD-4 cannot be relied upon.
52. Plaintiff further examined PW2 Prahlad Meena, JE MCD who deposed that he visited suit property and found seepage in almost whole flat and found damages in plaster, POP/roof plaster. PW2 was not cross- examined by defendant.
53. Plaintiff further examined PW5 Pawan Kumar, JE, SDMC who in his examination-in-chief stated that he has been transferred from concerned area four months ago and he has not brought summoned record as the same is not in his power and control. He in his cross- examination stated that complaints preferred by plaintiff were regarding CS No. 8005/2016 Page No. 17 of 23 Jhumur Chatterjee Vs. Hemant Gupta leakage in her flat. He stated that he had personally visited premises of plaintiff but from outside only. He stated that at that point of time, when he visited premises of plaintiff, premises was found to be locked. He stated that he cannot tell how old is the building in which flat of plaintiff is situated. He stated that as per his observation, on the day of his visit, the building seems to him an old one. He stated that he had visited the premises only once. He in his cross-examination brought one complaint given by plaintiff which was forwarded by a covering letter of Mr. Ramesh Bidhuri, MP vide Ex.PW-5/D1. He stated that Ex.PW-5/D1 was marked to him for necessary action. He has not brought the reports and photos as stated by plaintiff in her complaint dated 16.08.2017 accompanied with a covering letter Ex.PW-5/D1. He stated that he did not ask for the aforesaid reports and photos from plaintiff. He admitted that the covering letter Ex.PW-5/D1 was not containing the aforesaid reports and photos. PW5 was re-examined by plaintiff. He in his re-examination stated that as both the flats were closed, he could not inspect the said flats from inside for the purpose of damages and seepage coming from defendant's flat.
54. Plaintiff examined PW4 Mohd. Akhtar who is a private contractor who in his cross-examination stated that he did not visit the upper floor and had not seen whether the water was coming from upper floor. He volunteered that they never permitted him to enter upper floor. He stated that there was seepage in the bathroom, kitchen as well as in the rooms. He stated that he is not a Govt. approved contractor and has CS No. 8005/2016 Page No. 18 of 23 Jhumur Chatterjee Vs. Hemant Gupta not done any major work in DDA constructed flats. He stated that he cannot say whether any drilling was done in the roof. He stated that he can only say that there was water seepage from the upper floor. He stated that seepage in plaintiff's flat may be on account of damage in water pipes, damaged commode or may be on account of non-repairing of damage in the roof due to upper floor. He stated that he cannot tell the exact reason.
55. From what has been deposed by plaintiff and witnesses examined by her, one thing that comes out to the fore is that suit property was 20-22 years old when plaintiff purchased the same and it was more than 25-27 years old when defendant purchased upper floor of suit property in the year 2013-14. Plaintiff herself admitted in her cross- examination that suit property was not in a good condition when she purchased the same. She stated that she spent more than Rs.10,00,000/- in renovation after purchase of suit property. Plaintiff in her cross-examination further stated that she informed earlier owner also about some leakage from the pipeline outside wall of her flat which was got repaired and thereafter no seepage problem was there in her flat. She further stated that even earlier, she had made complaints to RWA as well as police regarding damage to her flat caused by seepage from the flat which was subsequently purchased by defendant. These statements of plaintiff clearly indicate that earlier also, there was problem of leakage and seepage in suit property prior to purchase of upper floor of suit CS No. 8005/2016 Page No. 19 of 23 Jhumur Chatterjee Vs. Hemant Gupta property by defendant.
56. Witness of plaintiff who could have proved source of seepage in suit property i.e. PW-4 in his cross-examination has stated that seepage in plaintiff's flat may be on account of damage in the water pipes, damaged combod or may be on account of non-repairing of damage in the roof of upper floor. Statement of PW4 clearly shows that he is not sure of source of seepage in suit property.
57. Similarly, PW-5 Pawan Kumar as per his cross-examination and re-examination did not inspect suit property and property of defendant from inside as both were closed at the time of his visit. Testimony of PW-2 is not of any consequence as it does not specify source of seepage in suit property.
58. Plaintiff should have got appointed an expert as Local Commissioner from Court to ascertain source of seepage in suit property who would have inspected various pipelines inside suit property as well as drainage pipes going from outside wall of suit property and would have given exact reason of seepage in suit property. In still photographs filed by plaintiff and videos shown (though not reliable), it appears that kitchen, bathroom and rooms in suit property, all are having one wall at least as outer wall and seepage can very well be on account of direct impact of rain or due to leakage from drainage pipe impacting even roofs of suit property.
59. Counsel for plaintiff during course of arguments submitted CS No. 8005/2016 Page No. 20 of 23 Jhumur Chatterjee Vs. Hemant Gupta that FIR No. 1241/2014 under Section 336/426 IPC PS Govind Puri titled as State Vs. Hemant Gupta has been lodged against defendant herein on account of acts of defendant of damaging suit property as alleged in present suit and charge-sheet in the said FIR has since being filed which has been proved on record by plaintiff vide Ex.PW-3/A (Colly).
60. Counsel for defendant to this argument of counsel for plaintiff submitted that no doubt, charge-sheet in FIR No. 1241/2014, PS Govind Puri has been filed against defendant but credibility of charge-sheet is yet to be tested in course of trial and that defendant is yet to cross- examine prosecution witnesses and that mere filing of charge-sheet in the said FIR cannot be said to be proving case of plaintiff against defendant.
61. I find force in submissions made by counsel for defendant qua filing of charge-sheet in FIR No. 1241/2014, PS Govind Puri. Till defendant cross-examine plaintiff and her witnesses in FIR No. 1241/2014, PS Govind Puri, contents of charge-sheet in the said FIR cannot be read against defendant herein.
62. In view of my above-made discussion, I am of the view that plaintiff has failed to discharge her burden qua issue No. 1. Accordingly, issue No. 1 is decided against plaintiff and in favour of defendant.
63. For proving issue No. 2, plaintiff was to prove that waste water coming out from urinal pipeline of defendant is causing damage to healthy living of plaintiff and her property.
CS No. 8005/2016 Page No. 21 of 23Jhumur Chatterjee Vs. Hemant Gupta
64. Plaintiff in her cross-examination has admitted that she is an old patient of sinus and bronco asthma which she is suffering much prior to purchase of flat by defendant. She denied suggestion that defendant is not responsible for any health issues regarding her or her family.
65. Plaintiff has not proved any medical record showing worsening of her health or health of any of her family members due to seepage in suit property. Plaintiff as held earlier has not even been able to prove source of seepage in suit property. In these circumstances, it cannot be said that plaintiff has been able to discharge her burden qua issue No. 2. Issue No. 2 is accordingly decided in favour of defendant and against plaintiff.
ISSUES No. 3, 4 & 53. Whether the plaintiff is entitled for the recovery of damages? OPP and
4. Whether the plaintiff is entitled for recovery of damages of Rs.11.75 lacs as prayed in prayer clause? OPP and
5. Whether the plaintiff is entitled for interest @ 18% per annum or at any other rate? OPP
66. Onus to prove these issues was upon plaintiff. These issues CS No. 8005/2016 Page No. 22 of 23 Jhumur Chatterjee Vs. Hemant Gupta are being taken up together being inter-connected.
67. In view of my discussion qua issues No. 1 and 2, I am of the view that plaintiff has failed to discharge her burden qua issues No. 3 to
5. Accordingly, these issues are decided in favour of defendant and against plaintiff.
RELIEF
68. In view of my findings qua Issues No. 1 to 5, I am of the view that suit filed by plaintiff is without merits and is accordingly dismissed. No order as to costs.
Decree-Sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by SONU SONU AGNIHOTRI AGNIHOTRI Date: 2024.10.28 18:31:52 +0530 Announced in open Court (Sonu Agnihotri) today on 16.10.2024 DJ-07, South East District, Saket Courts/Delhi CS No. 8005/2016 Page No. 23 of 23 Jhumur Chatterjee Vs. Hemant Gupta