Delhi District Court
Dr. Asha Chauhan vs Balbir Jaswal on 22 August, 2023
In the Court of Ms. Paridhi Sharma, Administrative Civil Judge
cumCommercial Cases JudgecumAdditional Rent Controller,
South West District, Dwarka Courts, New Delhi.
CNR No. : DLSW030015642021
Dr. Asha Chauhan versus Balbir Jaswal
a) Civil Suit No. : 772/2021
b) Name & address of the : Dr. Asha Chauhan,
plaintiff W/o Dr. Veer Singh,
R/o H1/96, 1st Floor,
Vikaspuri,
New Delhi 110018.
c) Name & address of the : Balbir Jaswal,
defendant S/o Not known,
R/o G162, 1st Floor,
Vikaspuri,
New Delhi 110018.
Also at:
R/o H1/96, 1st Floor,
Vikaspuri,
New Delhi 110018.
Date of Institution : 26.08.2021
Final arguments heard on : 20.07.2023
Judgment pronounced on : 22.08.2023
Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 1 of 10
Civil suit for permanent injunction, mandatory injunction and for
recovery of damages of Rs. 1,00,000/ (Rupees one lakh only)
JUDGEMENT
1. Vide this judgement, I shall dispose of the instant civil suit filed by Dr. Asha Chauhan (hereinafter referred to as "plaintiff") against Balbir Jaswal (hereinafter referred to as "defendant) for permanent injunction, mandatory injunction and for recovery of damages of Rs. 1,00,000/ (Rupees one lakh only) alongwith interest at the rate of 18% per annum.
2. Factual Matrix: The case of the plaintiff is that she is the registered owner and resident of property bearing House no. H 1/96, First Floor, Vikas Puri, New Delhi110018 which comprises of two bedrooms, one drawing room, one kitchen and one bathroom cumtoilet (hereinafter referred to as "the suit property"). It is further stated that defendant is the owner and resident of property bearing no. H1/96, Second Floor, Vikas Puri, New Delhi110018, which is located just above the property of the plaintiff.
3. It is averred that owing to seepage and leakage of water emanating from the second floor, owned and possessed by the defendant, the property of the plaintiff has got damaged. It is averred that the plaintiff repeatedly requested the defendant to repair the Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 2 of 10 defect in his property and to stop the flow of water, however, defendant failed to take appropriate steps. It is alleged that owing to locking of moisture, the floor of the plaintiff got infested with termites and the entire wooden furniture belonging to the plaintiff, got damaged. As per the plaintiff, due to said seepage and leakage, the plasters of ceiling, walls of different portion of the bedrooms and drawing rooms and tiles of bathroomcumtoilet have also fallen.
4. It is contended by the plaintiff that for the last six months, the condition has deteriorated due to infestation of termites in her floor. It is further contended that the entire wooden furniture such as almirah, tables, chairs, sofasets and other daytoday utensils got damaged.
5. It is further stated that when the defendant failed to take steps to repair his property, the plaintiff sent a legal notice dated 21.06.2021 through registered speed post calling upon the defendant to carry out repairs and to compensate her on account of harassment, damages and mental agony. It is averred that the said legal notice was duly served upon the defendant, however, defendant failed to take any action. Thereafter, the plaintiff again sent a legal notice dated 16.07.2021 reminding the defendant to repair the said seepage and leakage. However, despite service of the said reminder notice, the defendant failed to act.
Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 3 of 106. It is further stated that the plaintiff has not only suffered monetary loss but also the furniture belonging to the plaintiff has got damaged. It is further stated that the plaintiff and her family members are not able to reside and live in their own property peacefully. As per the plaintiff, she and her family members have been harassed, tortured and have lost peace, mental agony etc. owing to the defendant and hence, the plaintiff has asserted that the defendant is liable to compensate the plaintiff for an amount of Rs. 1,00,000/. Aggrieved thereby, the plaintiff has approached this court with the instant suit.
7. Relief sought: The following reliefs have been sought by the plaintiff in the instant suit:
i) to pass a decree of permanent injunction, thereby restraining the defendant, his associates, representatives, legal heirs etc. from creating leakage in property no. H1/96, 2 nd Floor, Vikaspuri, New Delhi110018 and directed the defendant to immediately stop/repair the said leakage in his property in favour of the plaintiff and against the defendant.
ii) to pass a decree for mandatory injunction, thereby directing the defendant, his associates, representatives, legal heirs etc. to restore the property of the plaintiff in its original condition i.e. by repairing the same and removing of the seepage/leakage of the property no. H1/96, 1 st Floor, Vikas Puri, New Delhi110018 in favour of the plaintiff and against the defendant, as shown in red colour in the site plan.Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 4 of 10
iii) to pass a decree of damages of Rs. 1,00,000/ alongwith interest pendent lite and future @ 18% per annum on account of damages caused to the property, immovable property as well as movable properties of the plaintiff, from the date of filing of suit till the date of its payment.
iv) cost of the suit may also be granted in favour of the plaintiff and against the defendant.
v) to pass any order which this court deems fit and proper under the facts and circumstance of the present case in favour of the plaintiff and against the defendant.
8. Summoning of defendants and chain of subsequent events: Upon receipt of the plaint, summons of the suit for settlement of issues were directed to be issued to the defendant vide order dated 26.08.2021. Summons sent to the defendant were received back duly served on 26.10.2021. However, despite service of summons, the defendant neither appeared before the court nor filed written statement within the statutory period of limitation. Compelled by the nonappearance of the defendant, the court proceeded against the defendant ex parte vide order dated 28.09.2022.
9. Evidence adduced by the plaintiff: Plaintiff got herself examined as a witness i.e. PW1 and tendered her evidence Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 5 of 10 by way of an affidavit which is Ex. PW1/A. The plaintiff relied on the following documents:
i. copy of title documents are Mark X (colly.) instead of Ex. PW 1/1 (colly.) as mentioned in affidavit Ex. PW1/A. ii. original site plan which is Ex. PW1/2.
iii. photographs are Ex. PW1/3 to Ex. PW1/17. iv. affidavit u/s 65 B of the Indian Evidence Act is Ex. PW1/18. v. copy of legal notice dated 21.06.2021 alongwith original postal receipt are Ex. PW1/19 and Ex. PW1/20 respectively. vi. copy of reminder legal notice dated 16.07.2021 alongwith original postal receipt are Ex. PW1/21 and Ex. PW1/22 respectively.
vii. original bills regarding repair, labour and plumber charges, construction material etc. are Ex. PW1/23 to Ex. PW1/28. viii. Documents mentioned in the affidavit as Ex. PW1/29 and Ex.
PW1/30 are deexhibited as the same are not available on record.
10. Thereafter, plaintiff's evidence was closed and final arguments were heard.
11. Final arguments: Exparte final arguments were heard on behalf of the plaintiff wherein learned counsel for the plaintiff navigated the attention of the court to the facts of the present case and the evidence adduced to support the claim put forth. Learned Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 6 of 10 counsel argued that since the version of the plaintiff has not been rebutted by the defendant, the plaintiff has successfully proved her case and the preponderance of probabilities lie in favour of the plaintiff. Accordingly, the suit be decreed in favour of the plaintiff and against the defendant.
12. Appreciation of Evidence and Reasons: I have heard learned counsel for the plaintiff, perused the record and considered the submissions advanced.
13. The averments of the plaintiff as are mentioned in the plaint and tendered in evidence by way of an affidavit are uncontroverted as the defendant failed to appear before the court to challenge and contest the same. The plaintiff has also proved that damage has been caused to her property by virtue of photographs which are Ex. PW1/3 to Ex. PW1/17. Although the photographs do not indicate that the damage caused to the property of the plaintiff is attributable to the inaction of the defendant to carry out repairs, there is no reason brimming from the record to doubt the oral avowal of the plaintiff that such damage is a result of leakage of water and seepage emanating from the property of the defendant situated above the property of the plaintiff.
Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 7 of 1014. The plaintiff has sought decree of damages worth Rs. 1,00,000/ on account of damages caused to the property. The plaintiff has filed two acknowledgements dated 01.05.2022 and 05.10.2022 which are Ex. PW1/23 and Ex. PW1/28 respectively. Similarly, the plaintiff has filed certain bills which are Ex. PW1/24 to Ex. PW1/27. The plaintiff however, is not the author of the said documents. Moreover, the plaintiff has not even disclosed the names of the persons who have given the acknowledgements dated 01.05.2022 and 05.10.2022. Likewise, the bills, Ex. PW1/24 to Ex. PW1/28 do not bear the names of the persons who have prepared the said documents. The said bills merely reflect certain amounts against certain items. All the bills are unsigned and unnamed. It is also not clear from the said bills that the same were raised against the plaintiff and pertain to the repairs, if any carried out in the property of the plaintiff.
15. Also, the plaintiff did not call and examine the persons who have authored the aforesaid documents. It was imperative for the plaintiff to call and summon the maker of the said documents for the purpose of proving the said documents. Since the makers of the documents have not been examined before the court, the documents Ex. PW1/23 to Ex. PW1/28 cannot be said to have been proved.
16. The plaintiff has also failed to quantify the damage caused to her property. It is generally stated in the plaint that the Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 8 of 10 wooden furniture got damaged owing to termite infestation which was a result of the seepage emanating from the property of the defendant. Photographs have also not been filed of such wooden furniture. The plaintiff has failed to show as to how and in what manner she has quantified the damage as amounting to Rs. 1,00,000/. The plaintiff could have called and examined an expert such as an architect to assess the damages in monetary terms. However, the plaintiff failed to do so despite grant of opportunity. Thus, a decree of damages worth Rs. 1,00,000/ cannot be granted to the plaintiff.
17. The plaintiff has sought a decree of mandatory injunction as well whereby the plaintiff has sought that the defendant be directed to restore the property of the plaintiff to its original condition. However, the plaintiff has not specified such original condition of the property. The relief sought is vague in nature and the defendant cannot be obligated to carry out the repair in the property of the plaintiff in the absence of any specifications. Thus, the said relief is also declined.
18. Conclusion: In view of the reasons spelled above, the present suit of the plaintiff is partly decreed in favour of the plaintiff and against the defendant. Defendant is hereby directed to immediately repair the leakage in his property and to ensure that water does not percolate in the property of the plaintiff. Further, the Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 9 of 10 court deems it appropriate to direct the defendant to pay a sum of Rs. 30,000/ to the plaintiff as compensation for the harassment caused to her.
19. No order as to costs.
20. Decreesheet be prepared accordingly.
Announced in the open court today i.e. 22.08.2023 Paridhi Sharma ACJCCJARC/South West Dwarka Courts: New Delhi Civil Suit No. 772/2021 Dr. Asha Chauhan v. Balbir Jaswal Page 10 of 10