Delhi District Court
Vinod Anand vs . Smt. Manjith Chawla on 26 October, 2018
Vinod Anand vs. Smt. Manjith Chawla
IN THE COURT OF DR. AJAY GULATI, ADDL. DISTRICT
JUDGE, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
Suit No.206663/2016
Filing No.19449/2010
CNR No. DLST010002782010
Vinod Anand
R/o 1st Floor, E125,
Greater Kailash PartI,
New Delhi
................Plaintiff
Versus
Smt. Manjith Chawla
W/o Sh. Jatinder Raj Chawla
R/o Ground Floor, E125,
Greater Kailash PartI,
New Delhi
Also at
C204, First Floor,
Greater Kailash PartI,
New Delhi
.............Defendant
Date of Institution : 04.06.2010
Date of reserving the judgment: 26.10.2018
Date of pronouncement : 26.10.2018
Decision : Dismissed
Suit No.206663/2016 Page 1 of 22
Vinod Anand vs. Smt. Manjith Chawla
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
AGAINST THE DEFENDANT
JUDGMENT
1. The present suit was filed for seeking Permanent Injunction against the defendant for restraining him from carrying out structural changes in the G.F. of property no. E125, GKI, New Delhi and Mandatory Injunction for directing him to restore the structural position of the ground floor of the suit property as it existed prior to the renovation/repair carried out by the defendant. As per the allegations levelled by the plaintiff, the said changes were being carried out without seeking any fresh sanction plan from the competent authority. Further, as per the assertions of the plaintiff, structural changes carried out by defendant on the ground floor (G.F.) has not only caused damage to the first floor (F.F.) of the suit property but also disturbed the peaceful enjoyment of the first floor (of which plaintiff is the owner), in addition to making the entire building unsafe as a result of which no construction can be carried out on roof of second floor (i.e 3 rd floor) of which also, plaintiff is the owner.
2. This Court did not grant interim injunction against Suit No.206663/2016 Page 2 of 22 Vinod Anand vs. Smt. Manjith Chawla the construction which was being carried out by the defendant and resultantly, the construction was completed during the pendency of the suit.
3. Defendant, who is the admitted owner of the ground floor of the suit property denied that any large scale structural changes have been carried out in the suit property. The defense raised was that since the building was more than 40 years old, it required urgent repair/renovation. However, despite repeated requests, plaintiff did not carry out the necessary repairs forcing the defendant to undertake the necessary exercise on her own. It was counter alleged by the defendant that plaintiff tried to extort money from the defendant on the pretext of giving sanction for carrying out repairs. It was specifically alleged that plaintiff demanded Rs. 55 lacs from the defendant for letting her to carry out the necessary renovation/ repair. Defendant also filed a counterclaim seeking Rs. 19 lacs from the plaintiff for causing extreme harassment to the defendant. The counterclaim was however not registered separately and an issue with regard to the counterclaim was framed along with the issues in the main suit.
4. It is necessary to highlight the grounds/reasons cited Suit No.206663/2016 Page 3 of 22 Vinod Anand vs. Smt. Manjith Chawla by the plaintiff which in his affirmation, make out a case for directing the defendant to restore the Ground Floor of the suit property to its structural position as it was prior to start of the renovation.
5. Plaintiff alleged as under (1) The load bearing walls on the G.F. of the suit property have been removed and its load has been shifted to steel girders.
(2) The linear position of drain pipes coming from the F.F. to the G.F. have been changed to angular position and also, the same have been covered with wood work. (3) The removal of load bearing walls has resulted in the whole building being rendered unsafe and also unsuitable for any further construction on the third floor i.e. roof of the second floor.
ISSUES
6. On the basis of respective pleadings, the following issues were framed by the Ld. Predecessor Judge:
1. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree Suit No.206663/2016 Page 4 of 22 Vinod Anand vs. Smt. Manjith Chawla of permanent injunction, as prayed for? OPP
3. Whether the defendant is entitled to the counterclaim, as prayed for? OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Relief EVIDENCE ADDUCED
7. In order to discharge their respective onus for proving the issues, parties led evidence by examining expert witnesses, in addition to plaintiff entering the witness box as PW1 and son of the defendant entering the witness box as DW1 (in the capacity of being the SPA holder of the defendant who is his mother).
8. Before discussing the evidence led by either side, it is important to highlight that this Court had appointed a Local Commissioner to assess the extent and nature of renovation being carried out by the defendant. Plaintiff has relied substantially on the said report since a finding was recorded by the ld. Local Commissioner to the effect that three load bearing walls were removed during the course of renovation activities on the G.F. In addition, ld. Local Suit No.206663/2016 Page 5 of 22 Vinod Anand vs. Smt. Manjith Chawla Commissioner also recorded that steel girders have been inserted in the roof of G.F. However, in regard to the drain pipes, ld. Local Commissioner could not record any specific finding i.e. whether the drain lines have been changed and were likely to obstruct the flow of drainage from F.F. to the G.F. This was for the reason that drain pipes had been covered by wooden cabinets.
On behalf of the plaintiff
9. Plaintiff himself appeared as PW 1. Examinationin chief of the Plaintiff was on the lines of the averments in the plaint. Particularly, para 19 of the Affidavit in evidence of PW1 contains the details of the structural changes carried out by the defendant on the ground floor.
10. The crossexamination of PW1 is not of much relevance. Plaintiff being the owner of the first floor, himself stepped in to the witness box as PW1. His assertions and allegations regarding the nature of structural changes carried out by the defendant were inconsequential unless the same were corroborated by the expert witness. Nevertheless, relevant part of the same is being highlighted.
11. In cross examination, PW 1 deposed that load Suit No.206663/2016 Page 6 of 22 Vinod Anand vs. Smt. Manjith Chawla bearing walls at point A B C D in Ex.PW1/D1 (photograph of proposed plan), have been removed by the defendant; that drainage pipes have been shifted from vertical position to angular position resulting in problems in water passage from the kitchen of FF because of change in water pipe system; and that his Architect had refused to prepare construction plan for the 3rd floor since the existing building/structure does not have the strength to bear the load of the 3rd floor on account of removal of load bearing walls on the ground floor. However, the witness admitted that till now, no mishap had been caused due to the structural changes carried out in the ground floor of the suit property
12. PW2 Rajesh Bhatia PW 2 was the expert witness cited by the plaintiff. The witness was a diploma holder in civil engineering and had experience in building surveying. The witness filed his inspection report of the suit property which was exhibited as Ex.PW2/A. In his chief examination, witness stated that he had given his Report about the strength of the building on the basis of calculation but submitted that the calculations are not a part of the report filed by him. He also deposed that load bearing walls were marked 'Red' in Ex PW1/8.
Suit No.206663/2016 Page 7 of 22Vinod Anand vs. Smt. Manjith Chawla
13. In his initial cross examination, witness was put questions regarding his knowledge of civil structure. He was asked questions regarding load bearing walls. Significantly, in response to a specific question about the effect of removal of load bearing walls on the building, PW 2 answered that building will collapse if load bearing walls are removed. Witness further deposed that the building (i.e. suit property) should have collapsed. However, it has not collapsed due to putting of steel girders for bearing load of the building. PW 2 however, denied the suggestion that load bearing walls can be replaced by steel girders. He volunteered to submit that replacing load bearing walls by steel girders will render the building dangerous.
14. PW3 Ashwani Kumar Gupta PW3 was the summoned witness i.e. LDC from the office of MCD, Building Department, Central Zone, Lajpat Nagar. He brought the summoned record i.e. certified copy of reply dated 03.08.2010 to the RTI application filed by the plaintiff and also the RTI application dated 09.07.2010 already exhibited as Ex.PW1/9. PW3 proved these certified copies as Ex.PW3/A. However, despite opportunity granted to the defendant to take steps for cross examination of PW3, defendant failed to do so and Suit No.206663/2016 Page 8 of 22 Vinod Anand vs. Smt. Manjith Chawla consequently, vide order dated 15.04.2014, opportunity of the defendant to cross examine PW3 was closed.
No other witness was examined on behalf of the Plaintiff.
On behalf of the defendant
15. DW1 Ankush Chawla Son of the defendant appeared as DW 1. He had a special power of attorney in his favour which was executed by the defendant. Defendant herself did not enter into the witness box. In his chief examination, this witness reiterated the assertions and allegations of the written statement i.e. that plaintiff tried to extort Rs. 55 lacs from the defendant for carrying out renovation; that MCD engineer who had inspected the suit premises when construction was gong on, had orally given them permission to continue with the renovation; that plaintiff had carried out renovation on the first floor as a result of which internal walls of the ground floor which is with the defendant, became weak and which required urgent repair; that as a result of plaintiff's renovation, electrical and sewage lines got damaged; that due to renovation carried out by the plaintiff, the ceiling of Suit No.206663/2016 Page 9 of 22 Vinod Anand vs. Smt. Manjith Chawla ground floor i.e. floor of first floor could have fallen down; and that Mr. K. N. Kapoor, structural engineer, had opined that building is in a dilapidated state and requires immediate repair. Mr. K.N. Kapoor gave a structural stability certificate dated 16.05.2010 which was marked/ exhibited as Ex.DW1/C.
16. In cross examination, DW1 denied the suggestion that plaintiff and defendant had mutually agreed for the appointment of a neutral structural stability engineer (though in his affidavit, DW1 had affirmed that parties had agreed to the appointment of a neutral structural engineer). He further denied that any load bearing walls had been removed on the ground floor. He could not tell the name of the official of MCD who gave them oral permission to continue with the renovation. He also denied the suggestions that plaintiff has suffered a huge loss as the sewerage pipe (drain pipe coming from the first floor to the ground floor) has been blocked and damage has been caused to the entire building.
17. DW2 - Saquile Hussain He was the expert witness who was brought in to depose on behalf of the defendant. DW2 relied on his inspection report / structural stability report dated 12.12.2016 as Ex. DW2/A. This witness held Suit No.206663/2016 Page 10 of 22 Vinod Anand vs. Smt. Manjith Chawla a degree in civil Engineering. He passed out in the year 2014 and was engaged to carry out inspection of the suit property in 2016. The relevant part of his examinationin chief was his affirmation that 3 load bearing walls and 3 partitions walls on the ground floor were structurally strong enough to bear the load of entire building. At this stage, it needs to be highlighted that defendant, in her written statement, had attached a structural stability certificate issued by Architect K.N. Kapoor, in support of her submission that the suit property required urgent repairs. However, before Mr. Kapoor could enter the witness box, he unfortunately expired. Consequently, this court permitted the defendant to get the property inspected from a qualified person and bring him in as a witness.
18. In his cross examination, DW2 deposed that he had given his report on the basis of documents provided by the defendant. However, no such documents were filed on record nor the list of such documents was mentioned in the report of DW2. In response to a specific question as to whether he could give professional opinion with regard to construction/renovation that was carried out in 2010, DW 2 replied that he can give professional opinion on the basis of architectural design and after comparing the same with Suit No.206663/2016 Page 11 of 22 Vinod Anand vs. Smt. Manjith Chawla current status of the property.
19. This Witness also explained the process of inspection conducted by him i.e. that he took photos of the property for inspection. However, the photographs which were purportedly taken, were not placed on record along with the Report of the witness. He denied the suggestion that no photographs of the property were taken and volunteered that photos were taken on his mobile phone which got damaged as a result of which the photographs could not be recovered.
20. He further denied the suggestions that report was wrongly prepared without visiting the suit premises; and that he deliberately did not mention about the structural changes which were carried out in the property in the year 2010.
No other witness was examined on behalf of the Defendant.
21. Before proceeding to critically analyse the evidence led, it is important to briefly highlight the findings of the ld. Local Commissioner. Local Commissioner carried out his inspection with reference to 2 specific allegations Suit No.206663/2016 Page 12 of 22 Vinod Anand vs. Smt. Manjith Chawla leveled by the plaintiff i.e. removal of load bearing walls on the ground floor and change of drain pipes from first floor to the ground floor as also the same being covered by wooden cabinets.
22. Since drainage and sewerage lines were covered by plaster tiles or wood work, L.C. could not say whether defendant had actually changed the position of drainage system or not.
23. In regard to removal of load bearing walls, (as told to the L.C. by the plaintiff), 3 load bearing walls were removed on the ground floor and 6 girders were affixed in place of the walls. However, the L.C. was unable to see the girders because of plaster.
FINDINGS
24. I have heard the arguments advanced by the Learned counsel for the parties and have carefully gone through the record and the evidence adduced by the parties.
25. The issuewise findings are as under:
Suit No.206663/2016 Page 13 of 22Vinod Anand vs. Smt. Manjith Chawla ISSUE NO.1 & 2
1. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP
26. The crucial issue for determination is whether the construction carried out by the defendant has resulted in making the entire building unsafe in general and specifically, whether it has also resulted in the building unsafe in such a manner that no vertical construction can be carried out on the roof of the second floor of the suit property. Though the plaintiff has relied heavily on the report of the L.C. wherein a specific finding has been given that three load bearing walls have been removed on the ground floor, there is no reliable evidence to prove that removing of the walls has resulted in making the building unsafe in any manner. In this regard, as already highlighted, evidence of PW1 and DW1 is not of any relevance since they are interested witnesses. However, even the testimony of expert witnesses cited by both the sides is not helpful in this regard.
Suit No.206663/2016 Page 14 of 22Vinod Anand vs. Smt. Manjith Chawla
27. PW2 Sh.Rajesh Bhatia who was the expert witness on behalf of the plaintiff, is not a structural engineer. His academic qualification is that of a Diploma in Civil Engineering. He also claimed to be engaged in surveying of building. In his crossexamination, this witness deposed that removal of load bearing walls would result in making a building unsafe. However, in response to a specific question as to why building (suit property) had not collapsed till now, the witness averred that it was so because of the steel/iron girders which had been put in (i.e. after removal of load bearing wall). This particular answer of the witness is relevant to assess whether the building had actually been rendered unsafe on account of removal of load bearing walls.
28. It would be relevant to also highlight that plaintiff has averred in the plaint as also affirmed in his evidentiary affidavit that his Architect had refused to prepare construction plan for the third floor on the ground that the building is unsafe on account of load bearing walls having been removed by the defendant. However, no evidence was led in this regard. In the understanding of the Count, architect's evidence in this regard would have been reliable evidence to conclude whether defendant's acts have Suit No.206663/2016 Page 15 of 22 Vinod Anand vs. Smt. Manjith Chawla rendered the building unsafe.
29. In addition, the report of PW2 was prepared in the year 2010 when the construction on the ground floor had already been completed. If the building had actually been rendered unsafe, as is being alleged by the plaintiff, the building would have shown some signs of strain on the walls. However, the report of PW2 is conspicuously silent on this aspect. There is no mention of the walls of the suit property developing any cracks as a result of any extra load being sustained by the remaining walls (i.e. after removal of load bearing walls).
30. Plaintiff has alleged in the plaint that while carrying out construction on the G.F., defendant has changed the drainage pipes coming from the FF to GF. Report of L.C. in this regard is inconclusive since at the time of inspection, the drain pipes had been enclosed by wooden cabinets. However, assuming that shape of drainage pipes had been changed by the defendants, plaintiff's assertion in this regard was only an apprehension that such change in drainage pipes will result in blockage of the drain water coming from the first floor. Plaintiff, while leading evidence as PW1, did not aver that since the conclusion of construction activity, there has been a blockage in the Suit No.206663/2016 Page 16 of 22 Vinod Anand vs. Smt. Manjith Chawla drain pipes coming from F.F. to G.F. The affidavit was filed in 2011, almost 1 year after the institution of suit. Had there actually been such a blockage, plaintiff would have surely mentioned so in his affidavit.
31. In the understanding of the count, even though defendant has not filed any objections against the report filed by LC which recorded a finding with regard to removal of load bearing wall, plaintiff has not led any effective evidence to prove that removal of three load bearing walls on the ground floor has rendered the entire building unsafe.
32. Plaintiff's own expert witness deposed that no structural mishap has been caused in the suit property because steel girder were installed in place of load bearing wall. The corollary is that there was no extra pressure on the remaining walls since the load being supported by the (removed) walls was now being supported by Steel Girders.
33. Another major argument raised by the plaintiff is that the construction was carried out without applying for sanction from the MCD. Plaintiff had also filed complaints before the MCD against the construction activity on the G.F. and evidence was led in this regard by summoning Suit No.206663/2016 Page 17 of 22 Vinod Anand vs. Smt. Manjith Chawla official from the MCD who appeared as PW3. The witness deposed with regard to receiving of application from the plaintiff under the RTI Act and the reply given.
34. As per the reply, no sanction was sought by the defendant. In this regard, what is surprising is that despite being aware of the unauthorized construction beign carried out by the defendant, no action was taken by the MCD. Perusal of the Court file reveals that after plaintiff had submitted a complaint to the police against construction activity on the G.F., inspection was carried out by a police official from Police Station Greater Kailash PartI who did not find any unauthorized construction being carried out by the defendant. Thereafter, he reported the matter to the concerned official of MCD. These two documents however, have not been exhibited but being on court record, the Court can validly rely on the same.
35. The reason for MCD not taking any action against the defendant is unexplained. It was thus imperative for the plaintiff to have impleaded MCD, being a necessary party to explain as to why it did not take any action against the defendant despite receiving complaints from the plaintiff and despite it coming to the knowledge of the MCD that defendant has carried out renovation without Suit No.206663/2016 Page 18 of 22 Vinod Anand vs. Smt. Manjith Chawla any fresh sanctioned plan. No question to this effect was put to official witness who appeared as PW3 who only proved the reply given to the plaintiff in response to his application under the RTI Act.
36. At this stage, it may be highlighted that even the report of PW2 which was given to the effect that suit property has become unsafe due to removal of load bearing walls, is silent on the 'basis' on which such a finding was given. A specific question was put in this regard to PW2 in response to which he replied that his (above said) observation was based on calculations but which he had not filed alongwith the report.
37. Even though evidence led on behalf of the defendant can at best be described as cursory, plaintiff himself has not led any noteworthy evidence to prove the allegation levelled in the plaint in regard to the structural instability of the suit property.
38. DW2, the expert witness held a degree in Civil Engineering. However, his affidavit reveals that he was brought in only to support the assertions of the defendant rather than giving any independent and unbiased professional opinion. However, as already noted, the evidence led by the plaintiff is insufficient to return a Suit No.206663/2016 Page 19 of 22 Vinod Anand vs. Smt. Manjith Chawla finding in his favour. Consequently, both these issues are returned against the plaintiff.
ISSUE NO.3 Whether the defendant is entitled to the counter claim, as prayed for? OPD
39. No evidence was led by the defendant to prove this issue. The evidence led was confined to prove the necessity of carrying out the construction by the defendant on the G.F. and that no harm has been caused to the suit property as a result of the construction/renovation on the G.F. The counterclaim of Rs.19,00,000/ has no supporting evidence. No loss has been shown to have been caused to the defendant. In any case, this Court did not stall the construction activity which was completed without hindrance. Even inspection by the police official during ongoing construction did not prove to be any sort of obstacle in the construction activity. The plea of defendants to the affect that plaintiff had demanded Rs. 55 lacs for letting the construction to go on could not be substantiated. Resultantly, this issue is decided against the Suit No.206663/2016 Page 20 of 22 Vinod Anand vs. Smt. Manjith Chawla defendant.
ISSUE NO.4 Whether the plaintiff has no locus standi to file the present suit? OPD
40. The onus to prove this issue was on the defendant.
In so far as locus of the plaintiff to file the suit is concerned, no fault can be found with the same. Being the owner of the first floor and third floor of the suit property, he would have been naturally concerned and apprehensive about the structural changes being carried out in the ground floor. Plaintiff was thus within his rights to seek the prayer for permanent and mandatory injunction though it is a separate matter that he has not been able to prove his entitlement for grant of these prayers. Consequently, this issue is decided in favour of the plaintiff.
RELIEF
41. In view of the above discussion, the suit of the plaintiff is dismissed. Counter claim filed by the defendant Suit No.206663/2016 Page 21 of 22 Vinod Anand vs. Smt. Manjith Chawla also stands dismissed. No orders as to cost. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN (AJAY GULATI)
COURT ON 26.10.2018 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS,
NEW DELHI
Suit No.206663/2016 Page 22 of 22