Delhi District Court
Raj Bala Verma vs Mahesh Saxena on 28 February, 2025
IN THE COURT OF SH. GAURAV SHARMA
JSCC-CUM-ASCJ-CUM-GUARDIAN JUDGE, EAST
KARKARDOOMA COURTS/DELHI
CNR No. DLET030003792014
Civ Suit No. 7778/2016
Smt. Raj Bala Verma
W/o Sh. Sushum Kumar Verma
R/o: C-245, East End Apartment
Mayur Vihar, Phase-I, Delhi-110091
......Plaintiff
Versus
1. Sh. Mahesh Saxena
R/o: C-244, East End Apartment,
Mayur Vihar, Phase-I, Delhi-110091
2. The Commissioner
East Delhi Municipal Corporation,
Undhyog Bhawan,
Patparganj Industrial Area,
Delhi-110092
......Defendants
Date of Institution : 05.05.2014
Judgment reserved on : 28.01.2025
Judgment pronounced on : 28.02.2025
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 1/30
JUDGMENT
28.02.2025
1. Suit Decreed.
2. The plaintiff is stated to be the owner of and in possession of flat no. C-245, East End Apartment, Mayur Vihar, Phase-I, Delhi - 110091, with the defendant no. 1 owning and occupying the adjacent flat bearing no. C-244 in the same apartments. An open shaft is stated to be existing in the building where such flats are situated from ground upto top floor for ventilation, light and natural air, apart from for use of work related to repair and maintenance of building, existing between flat of the plaintiff and that of the defendant no. 1 since the beginning. It is averred that the defendant no. 1, in mid March 2014 started raising illegal construction in the form of 'chajja' / shed by digging 'jhirri' in the wall of the flat of the plaintiff and by demolishing the wall of the flat of the plaintiff for extending his kitchen towards the shaft unlawfully and illegally, in utter violation of MCD/defedant no. 2 laws in this regard, without obtaining due permission etc. It is contended that such shaft is actually meant for common use for all the occupants of the building and yet, the defendant no. 1 was encroaching upon the same for his own private use, i.e for trying to construct the 'chajja'/shed on the window of his kitchen, the window being affixed on the encroached portion of the shaft. Due to the illegal construction, it is averred by the plaintiff that cracks had also developed in the flat/wall of Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 2/30 the plaintiff along with seepage on the wall of her house, adjoining to the shaft. Due to such unauthorised construction undertaken, the natural air/light coming into the plaintiff home has been obstructed. Not only that, it is also the plaintiff case that one main electrical switch box, which is installed on the wall, is leaking electric current due to seepage in the common wall. The plaintiff has also claimed that due to illegal construction undertaken by the defendant no. 1, it has become difficult to do day to day maintenance of the building, apart from causing noise/sound pollution and creating nuisance. Despite requests made by the plaintiff, it is averred that the defendant no. 1 did not mend his ways, due to which several complaints were also made by the plaintiff with defendant no. 2 and the police alongwith other authorities concerned (complaints dated 18.03.2014, 20.03.2014, 25.03.2014, 26.03.2014 and 27.03.2014) Even such complaints however did not improve things as it were, indicating that even the authorities were acting in collusion with the defendant no.1. Legal notice was also issued to the defendant no. 1 but to no avail. In fact, it is also stated that due to such activities on part of the defendant no.1, financial loss/mental harassment had been caused to the plaintiff, for which damages to the tune of Rs. 2 Lakh have also been sought. Hence the present suit came to be filed.
3. Summons of the suit were issued and WS came to be filed on behalf of the defendants no. 1 and 2. (Defendant No. 3 Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 3/30 was later deleted from the array of parties) The defendant no. 1 claimed that the plaintiff harbours personal grudges against him since her previous irregular conduct was reported by him to the society/authorities concerned(representation dated 15.03.2009, 14.11.2012) for which she was taking revenge from him by making false and baseless allegations. It was stated that the plaintiff had intentionally withheld the fact that on 25.03.2014, the Assistant Engineer (Building) Shahdara (South) Zone of defendant no. 2 had inspected the house of the defendant no. 1 and stated in its inspection report dated 27.03.2014 that "it was found that the repair work i.e. plaster, tile work, granite work at the kitchen platform was held up due to work stop notice issued from this office and no other construction work was noticed in any other room or balcony of the above said property". It is also pointed out by the defendant no. 1 that in the same report, it was further noted that "As per Clause 6.4.1 of the DMC Act no notice and building permission is necessary for repairing work". It is the defendant case that the plaintiff herself has undertaken illegal construction at her house obstructing the light/air/ventilation in the kitchen area of the defendant no.1 and had also covered the shaft area in front of the kitchen by covering her balcony. Remaining all averments of the plaintiff were similarly denied by the defendant no. 1 concluding by praying for dismissal of the present suit.
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 4/30
4. Defendant no. 2/MCD also filed its WS and sought to negate all the assertions of the plaintiff on lines similar as the ones already taken by the defendant no. 1.
5. In the replication that came to be filed by the plaintiff, the contents of the plaint were reiterated whilst denying all the defences taken by the defendants.
6. Pleadings being complete as such, the Ld. Court at the time, to narrow down the controversy, vide order dated 01.07.2014 appointed a Local Commissioner who was directed to undertake inspection of the site of the alleged illegal/unauthorised construction and file its report with photographs etc. The same was duly complied.
7. Vide order dated 23.01.2015 thereafter, issues came to be framed for consideration of the court as follows :
1) Whether the plaintiff for the relief of permanent injunction as prayed for ? OPP
2) Whether the plaintiff for the relief of mandatory injunction as prayed for ? OPP
3) Whether the plaintiff is entitled for the damages of Rs. 2 Lakhs ayongwith interest at the rate of 24% ? OPP
4) Whether the suit is barred under the provisions of Order 7 Rule 11 CPC for want of cause of acton ? OPD1 and D2
5) Whether the suit is barred under the provisions of Section 477 and 478 of DMC Act ? OPD2
6) Relief, if any.
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 5/30
8. Plaintiff evidence was lead subsequently wherein two witnesses came to be examined, the plaintiff herself and a formal witness, one from Group Housing Society Branch, DDA. They relied upon the following documents :
i) Site Plan : Mark A
ii) Conveyance Deed : Mark B
iii) Complaint lodged with
Commissioner EDMC,
Additional Commissioner,
Director of Vigilance,
Deputy Commissioner,
Executive Engineer,
Society President, Executive
Building and SHO : Ex. PW1/C (Colly.)
iv) Work stop notice dated
20.03.2014 : Ex. PW1/D (OSR)
v) Photographs : Ex. PW1/E
vi) Legal notice alongwith
postal receipts : Ex. PW1/F
vi) Copy of layout plan : Ex. PW2/A (OSR)
9. Upon being cross examined at length thereafter, PE was closed vide order dated 10.08.2017.
10. DE was then lead and the defendant no. 1 was examined first with a witness, an AE (Assistant Engineer) being examined later. The said witnesses relied upon the following documents :
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 6/30
i) Complaint received on 15.03.2009, made to the President of the Society : Ex. DW1/A
ii) Complaint received on 14.11.2012, made to the President of the Society : Ex. DW1/B
iii) Complaint received on 15.03.2014, made to the President of the Society : Ex. DW1/C
iv) Complaint received on 16.03.2014, made to the SHO PS New Ashok Nagar : Ex. DW1/D
v) Complaint received on 27.03.2014, made to the Asstt. Engineer (South) Zone, MCD : Ex. DW1/E
vi) E-mails sent by the defendant on 21.03.2014 and 02.04.2014 to the Commissioner of Police and other department : Ex. DW1/G and Ex. DW1/H
vii) Work stop notice dated 20.03.2014 : Ex. DW1/I
viii) Representation dated 13.08.2015 : Ex. DW1/K (OSR)
ix) Complaint dated 09.07.2015 : Ex. DW1/L (OSR)
x) Representation dated 08.08.2015 : Ex. DW1/M (OSR)
xi) Report of Asstt. Engineer (South) Zone : Mark DW1/N
xii) 12 photographs : Mark 1 to 12
xiii) Signatures of Sh. D.P. Sharma, then AE, on status report dated 01.07.2014 at Point A : Ex. D1W1/A
xiv) Signatures of Sh. Vinod Khati, then JE, on inspection report dated 25.03.2014 at Point A : Ex. D1W1/B Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 7/30
xv) Signatures of Sh. D.P. Sharma, then AE, on inspection report dated 27.03.2014 : Ex. D1W1/C
11. Request for examination of more witnesses was declined by the then Ld. Court since DE had been closed previously.
12. Matter was then posted for final arguments. All the sides made submissions accordingly and the matter was reserved for orders.
13. Case file perused. Submissions considered.
14. Issues No. 4 and 5 are taken up for disposal first, being questions of law and otherwise as well, seen to be requiring no prolix discussion for being repelled at the threshold.
Issue No. 4Whether the suit is barred under the provisions of Order 7 Rule 11 CPC for want of cause of action ? OPD1 and D2
15. The plaintiff has categorically stated in the plaint that the need to file the instant suit arose since as per her, there was illegal/unauthorised construction undertaken by the defendant no. 1 at the place of the common shaft between her house and that of the defendant no.1, which amounted to encroachment. Not only that, she has also averred that due to such construction, her own house wall had developed cracks, electric current was flowing in the house walls and there was Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 8/30 risk of the flat walls falling over. Apart from that, it has also been clearly averred that the due the conduct of the defendant no.1 , the air/light/ventilation of the plaintiff house was obstructed as well. All such averments, are a set of facts, as pleaded by the plaintiff and do constitute cause of action in favour of the plaintiff, accruing right to her to protect her peaceful possession of her property by stopping the defendant no.1 from carrying out illegal/unauthorised construction. It bears no repetition of the age old principle that for a plaint to be rejected under Order 7 Rule 11 CPC, the contentions taken as only in the plaint are to be looked into. If that be so, there is no denying that given the factual matrix, the plaint does indeed disclose cause of action on part of the plaintiff as against the defendants. Accordingly, Issue No. 4 is decided in favour of the plaintiff and against the defendants.
Issue No. 5Whether the suit is barred under the provisions of Section 477 and 478 of DMC Act ? OPD2
16. It is seen that in written statement filed by defendant / MCD, it has been claimed that the present suit is barred under Sections 477/478 of DMC Act for want of statutory notice. The said claim however is seen not to be legally tenable. The basic object of Sections 477/478 of DMC Act is to prevent matters from coming to court without due process but once the matter has reached the court and is contested, the suit Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 9/30 ought not be dismissed on technical grounds. (Col. A. B. Singh (through LRs) v. Shri Chunnilal Sawhney and Others, 2011 SCC OnLine Del 4289). Considering the same, once defendant / MCD has contested the present suit, it cannot take recourse to Section 477 and 478 of DMC Act. Issue No. 5 is therefore decided in favour of the plaintiff and against defendant no. 2.
Issue No. 1 and 21) Whether the plaintiff for the relief of permanent injunction as prayed for ? OPP And
2) Whether the plaintiff for the relief of mandatory injunction as prayed for ? OPP
17. Both the issues as aforesaid are intertwined, being based on similar facts. As such therefore, they are taken up for disposal together.
18. PW1/Plaintiff in her examination in chief by way of affidavit deposed on similar lines vis a vis the averments contained in the plaint. Before adverting our attention to the appreciation of the evidence on record pertaining to PW1, it is seen that the plaintiff relied upon some photographs as well Ex. PW1/E. They were objected to from being tendered in evidence. Neither any certificate qua such photographs under Section 65B Evidence Act was filed nor the negatives thereof were also placed on record. In view of the same, Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 10/30 such photographs are held to be inadmissible in evidence.
Apart from that, it is observed that the plaintiff evidence did indeed inspire confidence. She stated that she was a housewife and her husband was a part time doctor. She further added that she had purchased her flat no. C - 245 in her own name and was continuously residing therein since many years. As per the witness, she first noticed the damage on the walls of her house on 16.03.2014 and as a result of the same, she got to know about the illegal construction work having been undertaken by the defendant no.1. At that time, the witness informed, her husband was not in the house. She went on to explain that many workers had been employed by defendant no. 1 for carrying out the work. At that time, i.e. on 16.03.2014, it was stated by the witness that she noticed cutting ('jhirri') in her house wall but realised that the same had been there from before as the defendant no. 1 would have been carrying out his construction work from prior in time. PW1 added that she herself noticed the work of extension of the kitchen by the defendant no. 1 when she noticed the damage to the walls of her home. She also explained that though she did not herself see inside the premises of the defendant no. 1 but as electricity wire of her premises was broken, she had thought that the defendant no. 1 was stealing electricity. The witness on being probed by Ld. Counsel for the defendant no. 1 elaborated further that the work of extension was carried out by the defendant no.1 in a hurried manner in about 15-20 days and only after that she could notice the same later on 16.03.2014. She denied Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 11/30 having taken any views/opinion of any other residents of the society qua the same during that time. PW1 stated that she could not tell the exact dimensions of the window installed on the encroached portion of the shaft but it was probably an iron window of a height of about 3 feet with a width of 5 feet. Regarding the site plan Mark A filed on record, it was stated by the witness that the same had been obtained by her from the office of the Society comprising the flats in question. The portion being reflected therein as the unauthorised construction as being darkened was stated to be from before and the suggestion that the exact place of the alleged construction having been undertaken was not shown in such map was duly denied. Plaintiff also stated that multiple cracks had occurred in the wall of her house due to the construction work undertaken by the defendant no. 1. She also stated that the electricity box affixed on the wall was already in existence which was done by the society - uniformly for all houses of the society. The witness asserted that there was noise pollution caused as well due to the construction work undertaken by the defendant no. 1, though she did not know if it had been affecting any other resident also. It was re-agitated by the witness that no action had been taken by the authorities concerned upon complaints lodged by her, though admitting that the officials from PS New Ashok Nagar had visited her house. Suggestions regarding no unauthorised construction having been found were denied and it was reasoned that photographs were taken by the police and it was informed to her that they will Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 12/30 in turn inform the MCD/defendant no. 2. The suggestion that the MCD officials also visited the site of the flats and had found no foul play was categorically denied by the witness. The witness stated that the photographs filed on record by her were taken through a personal photographer though no bill issued to him could be produced. It was denied that such photographs did not belong to her house. Such photographs have already been held to be inadmissible as above and therefore, no more scrutiny of the cross examination conducted thereon is warranted. With regards the damages of Rs. 2 Lakh claimed by the plaintiff, it was stated that her assessment in that regard was based upon the opinion taken from an expert, whose name however could not be recollected. The factum of legal notice issued by the witness on false and frivolous grounds was also negated. The witness similarly also denied the suggestion that no action had been taken by the MCD/defendant no. 2 since no unauthorised construction had taken place at the defendant end. As to the damage caused in her house, the witness stated that she had got minor repairs done - the cracks having been done up, so also the whitewash work, on account of the marriage of her daughter after filing of the present suit. Suggestions to the effect that no court permission in that regard was taken were denied. Likewise, the witness also refuted all the allegations/suggestions put to her that that since she herself was of quarrelsome nature and against her, the defendant no. 1 had lodged several complaints before, she was now taking recourse to these Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 13/30 proceedings only as a measure to take revenge. The witness was also put to that the work undertaken by the defendant no. 1 at the site of his flat was only with regards tiles and that no new construction was done - which again, the witness clearly denied. In such a manner, the witness cross examination on behalf of the defendant no 1. was concluded. She was further cross examined on behalf the defendant no.2/MCD as well. She stated that she was not at home when the damage was caused by the defendant no.1 in her flat and explained it by apprising that no construction work in fact had taken place in her presence as she was outstation. This is in line with what the witness had stated before that she noticed the cracks on the walls of her house later only on 16.03.2014 when the defendant no.1 had perhaps carried out the construction work in a hurried manner from much before. The witness reiterated that she had made complaints to the police on 16.03.2014 and to the MCD on 20.03.2014, when the defendant no. 1 was installing the window and the bricks work was going on. She again emphasised that she did not know the particulars of what was done by the defendant no. 1 on exactly what dates as she had been at her native village prior to that, at Mukherji, District Rohtak, Haryana. She stated that she used to go to her village for agriculture related work - for the purpose of crop cutting. The witness deposed that she did not remember the exact dates of her travel but also stated that she used to go there by train, whose tickets again were stated to be unavailable to be produced. It was also informed by the witness that at the Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 14/30 time the defendant no. 1 would have started and undertaken the unauthorised construction, she and her husband both had been outstation, as both of them had gone to their village. She was asked if anyone had informed her on mobile that the illegal construction work was being undertaken, to which the witness replied that no person had informed her as such. It was put to the witness that the fact that she had been in village at the time of the alleged unauthorised construction was not stated in her complaints to the police or the MCD, to which she agreed, but she informed that by the time, the officials had visited her house, the construction work had already been completed. All other suggestions put to the witness were denied that the case set up by her was false.
19. It can be seen therefore that the witness testimony as aforesaid has a broad stroke of uniformity running through it. The fact that the witness did not get to know at the very beginning as to when the defendant no.1 would have started the construction work does not take away from the fact that such work had indeed carried on and the plaintiff got to know about it later only, when she had observed cracks in the wall of her home. No absurdity in such a claim can be seen and the same appears to be rather normal. People do overlook minor variations in their homes and are otherwise also occupied with so many things that it is reasonable to presume that things may escape from being meticulously noticed right at the start. Physical presence of the construction work having been undertaken is fortified by the Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 15/30 Work Stop Notice issued by the MCD and the Local Commissioner Report furnished before the court, both of which shall be alluded to a bit later. If that be so, just the fact that the plaintiff couldn't particularly catch hold of the defendant no. 1's designs right from the start will not take away the genuineness of her grievance altogether. Similarly for the travelling out of town to the village bit. Though no proof could be furnished by the witness that she and her husband had been to their village during the time when the defendant no.1 would have initiated the construction work, and that the same was not reflected in her complaints as well, but that again, is nothing that is extraordinarily prejudicial to the overall case otherwise set up by her. People generally do not retain their travel tickets and even sometimes delete their call logs and the same is not entirely unnatural. Moreover, such questions were put to the witness in her cross examination in 2016, i.e. well after 2 years and at that time, the likelihood of such record being available to prove credentials is any ways extremely low in usual course. One has to judge conduct of a witness on the touchstone of a reasonably prudent person and on that yardstick, this court is of the view, that the plaintiff case is not weakened by the fact that she didn't mention about her travel in her complaints previously or that she didn't have the travel log with her to support her answers in her cross examination. The overall version seems to be plausible even without them and more specifically, in view of the official record of the Work Stop Notice and the Local Commissioner Report Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 16/30 being available on record. Considering the same, this court is of the option that the overall version of PW1 does indeed remain stitched together on crucial aspects of the case, being corroborated by other formal record of the case.
20. The plaintiff during her testimony relied upon Ex. PW1/D (OSR) - Work Stop Notice dated 20.03.2014 issued by defendant no. 2/MCD to the defendant no. 1. The said document is admitted by the defendant no.1 and is not disputed. On a careful scrutiny of such a document it is noted that it contains clear and unambiguous recitals with regards the unauthorised/illegal construction work having been undertaken by the defendant no.1 at his house. It is addressed to the SHO concerned and to paraphrase, it is stated therein that it was noticed that the owner of the flat bearing no. C-244, East End Apartment, Mayur Vihar, Phase
- I, Delhi - 91, had carried out/was carrying out unauthorised construction/deviations against the sanctioned building plan at the property and inspite of best efforts of the MCD, the owner had not stopped the construction activity at the site. In view of the same, the police was requested to take action as per the provisions of the DMC Act to immediately stop the unauthorised construction, remove the workmen present at the premises and the construction material including tools, machinery etc. be seized so that no further construction could proceed. This action, is seen to have been obviously taken in response to the complaints made by the plaintiff, duly exhibited in her evidence as Ex. PW1/C (Colly). The Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 17/30 defendant no.1 in fact has agreed that in pursuance of such notice, work was indeed got stopped at his house. Inherent in the wording of the notice, is the fact of unauthorised construction work having been undertaken by the defendant no.1 as the one alleged by the plaintiff, since the source of such a notice in first place were the complaints moved by the plaintiff. Considering the same, unauthorised construction of the kind as alleged stands proved on record.
21. As against the above, during evidence in defence, DIW1 Raju, AE Building, Shahdara South Zone, EDMC, Delhi, a summoned witness, was examined. He identified the status report dated 01.07.2014 regarding property no. C-244 prepared and signed by the then AE namely D P Sharma, Shahdara South Zone, Delhi being Ex. D1W1/A. The witness also identified the inspection report dated 25.03.2014 duly signed by Vinod Khati, the then JE, Shahdara South Zone, Delhi being Ex. D1W1/B and the inspection report dated 27.03.2014 signed and filed by the same D P Sharma as above being Ex D1W1/C. All these documents, in sum and substance claimed to exonerate the defendant no. 1 from any wrong doing. This is so since as per such reports, it was found that the repair work i.e. plaster, tile work, granite work at the kitchen platform was held up due to the work stop notice issued from the MCD office and no other construction work was noticed in any other room or balcony of the defendant no. 1 property. Such reports also mentioned that as per clause 6.4.1 of DMC Act, Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 18/30 no notice and building permission was necessary for repairing work. Now all these documents, specifically Ex. D1W1/B and D1W1/C, purportedly giving a clean chit to the defendant no.1 were disputed by the plaintiff and were seriously put to question as to their veracity and admissibility during cross examination of the witness. They were objected to from being tendered into evidence as well. The witness D1W1 stated that he was posted at Zonal Office, Vishwas Nagar, Shahdara, Delhi since 2018. Upon pointed questions put to him, the witness conceded that he had not brought the office copies of the documents Ex. D1W1/B and D1W1/C and that in the year 2014, when they were prepared, he was not posted in the same zone. The witness also admitted that any documents of the kind Ex. D1W1/B and D1W1/C when prepared, an official copy of the same is always retained on record by the MCD for future reference. D1W1 also agreed that he had searched the office record thoroughly but despite his best efforts, office copies of Ex. D1W1/B and D1W1/C could not be found to be available in the record of the Zonal Office. Even further, the witness also admitted that at the time of inspection and preparation of all such documents, he was not present at the spot and the same were also not prepared in his presence, leaving him with no personal knowledge about the documents Ex. D1W1/B and D1W1/C. He again reiterated upon being asked that qua any document which is issued by any official of the MCD in due course of official work, the authenticity of such document is always compared and Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 19/30 proved through the official document which is kept in the official record of the MCD. With regards his deposition itself, the witness clarified that he was deposing in court only on the basis of the record on the judicial file, in effect stating that he had no means to verify the documents themselves in first place. Suggestion with regards the fact that the witness had not brought the office copies of the documents Ex. D1W1/B and D1W1/C as they were never executed/prepared by any official was denied. It is seen that all such reports, relied upon by the witness are copies. Even during his evidence, the defendant no. 1 also tendered in evidence copy of the inspection report only.
22. As a general rule, in order to prove a document, original document is to be produced. Contents of it are to be proved so also signature on the same. Normally, any party who wants to prove the content of the document is required to lead evidence by production of the original document before the court through its author. Under Section 61 Evidence Act, the original document can be presented before the Court through the author, who created the document and it can be proved. Section 62 of Indian Evidence Act defines primary evidence which means a documents itself produced for inspection of Court. Secondary evidence of the contents of documents is admissible only if the original document is not in existence or not available. Therefore, it is usually necessary to account for the absence of the original and for this purpose, proof of primary evidence is not available may Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 20/30 be required. Secondary evidence includes copies made from or compared with the original. In the present case however, original copy for comparison has not been produced. The contents of documents can be proved by oral evidence. However, the contents must be proved by admissible evidence. If the truth of the facts stated in the documents itself is in issue, then, proof of execution of the document should not be equated with the proof of facts stated in the document. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. In case of xerox or photo copy, Section 63 of the Evidence Act requires that, the said copy must itself ensure that it is accurate copy, such as competent authority certifying the copy as accurate copy of the original. Hence, the photo copy by itself may not be admissible, but if it is proved that it is made from the original, it is admissible. In a case where original documents are not produced at any time, nor, any factual foundation has been led for giving secondary evidence, it is not permissible for the Court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in Section 65 Evidence Act. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 21/30
23. Looked at from the above standpoint, it is seen that no explanation whatsoever could be given by D1W1 as to why originals/office copies of the the documents Ex. D1W1/B and D1W1/C could not be produced for comparison from the record of the MCD. In fact, it was stated by the witness that he had checked up the entire available record and despite the same, the inspection reports represented by Ex. D1W1/B and D1W1/C were not be found anywhere. If that be so, the objection taken by the plaintiff to consider these documents as admissible as secondary evidence, being copies, seems fair since the originals were never made available for comparison to make such documents fall within the purview of Section 63 Evidence Act as Secondary Evidence and resultantly under Section 65 Evidence Act, cases in which such Secondary Evidence can be led. Short of any explanation in this regard and no other witness having been examined in this regard, documents Ex. D1W1/B and Ex. D1W1/C are found not to be of any help for the defendant no.1 or for that matter defendant no. 2 either.
24. Irrespective of the above as well, even if the documents as aforesaid are considered for argument sake, they do not inspire confidence. This is so since no where do they state as to how and under what circumstances did the MCD officials/defendant no. 2 make a summersault from their stated position before, when they had issued a Work Stop Notice to the defendant no.1 upon having found out the he was undertaking illegal/unauthorised construction at his flat Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 22/30 C - 244, to now claiming that everything was hunky- dory. No witness was examined, either by the defendant no. 1 or by the MCD/defendant no. 2 in this regard to clear the air and to inform the court the circumstances whereby which the assessment was made as to unauthorized construction being there first to later discovering that there was none. Had there been bonafides on part of both the defendants, a proper account of the changed stance would have indeed been given, instead of filing on record a one paragraph report giving a clean chit to the defendant no.1 . MCD/Defendant no. 2's word can not be taken to be true on the mere asking just because its a government authority and being a litigating party, onus was upon it to prove its vacillating stand, but not to be.
25. Coming now to the Local Commissioner Report, it is noted that vide order dated 01.07.2014, Ld. Court at the time appointed one Purshottam Mishra as the Local Commissioner to ascertain the nature and extent of the construction activity carried out at C - 244, East End Apartments, Mayur Vihar, Phase - I, Delhi. Accordingly, the suit property was inspected alongwith the plaintiff, her Counsel, defendant no.1 and defendant no.2 represented through the JE concerned. Photographs were also clicked and the entire scene was videographer also. A report was filed to this effect wherein which it was also noted that the suit property was observed from the roof as well as from the ground floor and the shaft existing between the flats of the Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 23/30 plaintiff and the defendant no.1 . Vide the said report, it was concluded by the Local Commissioner that it appeared to him from the side of the kitchen of flat of the defendant no.1, there was concrete and permanent extension of the structure, though it was difficult to ascertain the age of such extended structure. It was nevertheless noted in the report that the extended structure was clearly visible, had almost covered the complete shaft leaving little open space between the shafts of the two flats - that of the plaintiff and the defendant no.1. The photographs filed and CD submitted also clearly confirm the findings of the Local Commissioner.
26. In view of Order 26 Rule 10(2) CPC, the settled legal position is that the report of the Local Commissioner can be treated as evidence in the suit where it is not challenged by any party. Accordingly, in the present case the report of the Local Commissioner and the contents therein can be relied upon by the Court as evidence to assess the unauthorised construction and its extent, as the same stands unchallenged. The Local Commissioner has unambiguously reported that the extended structure, which is clearly visible, is concrete and permanent, covering the entire shaft with very little space from the shaft of the plaintiff flat. Though the Local Commissioner was unable to clearly state the age of such construction, from the evidence of the plaintiff however and the action taken thereon by the MCD, in issuing Work Stop Notice to the defendant no. 1, it is clearly established that Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 24/30 the construction was indeed the one as was alleged by the plaintiff as having been undertaken by the defendant no. 1 since about 15-20 days in a hurried manner, after which she had discovered the same on 16.03.2014, when cracks were visible in the walls of her house. Such evidence has been held to be reliable as aforesaid. Moreover, it has also been discussed above that based upon the complaints made by the plaintiff only, the MCD/defendant no. 2 had sprung into action, had found the defendant no. 1 guilty of unauthorised construction and only therefore, when he did not by himself stop from raising such construction further, did they ask the police to prevent him from doing so by issuing the Work Stop Notice, which is very much admitted on both the sides. The counter to that, the inspection reports issued by MCD subsequently to the defendant no. 1 have been noted to be not admissible above already and even otherwise as lacking merit irrespective. In view of the same, the Local Commissioner report clinches the case for the plaintiff and the defendants are unable to go past the same.
27. In view of the above circumstances, looked at individually and collectively, the factum of illegal/unauthorised construction undertaken by the defendant no. 1 stands proved on record in the manner as alleged, in light of the plaintiff evidence, the Work Stop Notice and the Local Commissioner Report, all indicating to the contrary vis a vis the defendant stand. Considering the same, the defendant was unable to prove its defence in this regard, based upon Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 25/30 cross examination of the plaintiff as well as the documents relied upon, which could not be said to be admissible even to begin with.
28. PW2/Rajesh Kumar Yadav brought on record the original layout plan of the Saraswati Kunj CGHS Ltd situated at Patparganj, plot no. 25 Delhi, presently known as the East End Apartments Ex. PW2/A. Evidence of such witness however did not particularly aid anyone's case since the layout plan filed did not specify the dimensions of each flat constructed in the Group Housing Society.
29. The defendant no. 1 on its own end, examined himself as DW1 and re-emphasised his averments as were taken in its WS. In his cross examination however, he did not quite remain as steadfast. Denying that the plaintiff had been residing in her flat from before than he had been residing in his, he admitted that the flats were nonetheless on the same floor, adjoining to each other with the balcony and wall of flat of the plaintiff situated immediately next to the wall of the kitchen of his own flat. He also agreed that there was a shaft that existed in such apartments and the window of the kitchen of his flat no. C - 244 opened towards such shaft. To that, a Court question was put to the witness if such window was visible in the photographs, Ex. PW1/E (Colly) - which he denied by stating that the said window was visible at Point 'X' in the photograph Ex. DW1/P1. (Photograph taken by Local Commissioner and filed alongwith the report) The Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 26/30 witness admitted to all the photographs in fact filed by the Local Commissioner but stated that the shaft was visible in none of them. Upon being further questioned, the witness stated that the water connection to his flat came from outside, the pipes being inside the walls. The gas connection to his flat, as per the witness, came from the top towards his flat and not through the shaft, which according to him went from the ground floor to the top floor. The witness denied there being any window of the flat of the plaintiff opening towards the shaft. Strangely thereafter, upon being asked as to the general structure of the flats in the society where the witness resided, he pleaded ignorance by stating that he did not know if the window of the kitchen of the flat below his opened towards the shaft or not, despite agreeing that the structure of all the flats was the same. He also denied ever noticing that the window of the flat below his flat was less extended in contrast to the window of his own flat. He denied the suggestion that the window of his flat had been extended by 2-3 feet by encroaching upon the shaft. The witness also denied the suggestion that due to the work done by him in his kitchen, the common wall between his flat and that of the plaintiff had got damaged /developed cracks and instead stated that such cracks had developed due to the work done by the plaintiff herself in her own flat. The defendant no. 1 has indeed filed on record copies of several complaints against the plaintiff with regards such contentions and tried to attribute motives to her to file the present suit maliciously. In view of the evidence lead by the Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 27/30 plaintiff however, which has been held to be trustworthy also, appended with the findings of the Local Commissioner and the Work Stop Notice issued to the defendant no. 1, no nexus can be said to have been established by the defendant no. 1 vis a vis such complaints on the one hand and the the unauthorised construction that had been undertaken by him, the basis of the present suit on the other. If at all, two wrongs could not make one right and that would be no defence of the defendant no. 1. Going further, the witness again pleaded ignorance and stated that he did not remember if on the date of the visit of the Local Commissioner, any work had been going on or not in the kitchen of his flat. The witness again asserted that all the complaints against the plaintiff tendered in his evidence were not false and explained that based on these complaints only, the President of the society had once sat with both the parties also and tried to resolve the dispute, but nothing favourable could come out of it. All other suggestions were duly denied.
30. All in all therefore, it is seen that the defendant evidence adduced on record is unable to show gaps in the plaintiff version so as to establish a favourable version in its favour. Defendant was unable to show that he had not indulged into unauthorised construction of the kind as alleged and failed to show that the evidence led by the plaintiff did not make out a case against him. As such therefore, Issues Nos. 1 and 2 are decided in favour of the plaintiff and against the defendants.
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 28/30 Issue No. 3 Whether the plaintiff is entitled for the damages of Rs. 2 Lakhs alongwith interest at the rate of 24% ? OPP
31. With regards the damages claimed, the plaintiff has not adduced on record cogent evidence as to the calculation of the amount sought of Rs. 2 Lakh. It was only stated during her cross examination that she had arrived at such a figure upon the opinion provided by an expert. Details of such expert were not forthcoming. Moreover, plaintiff herself deposed during her evidence that due to marriage of her daughter, she had got her house white washed and as a result of the same, the cracks and the other damage caused to the walls of her property stood repaired already. In view of the same, this court is not inclined to award any damages to the plaintiff separately as the substantive relief of the unauthorised construction to be demolished has been granted already. Accordingly, Issue No. 3 is decided against the plaintiff and in favour of the defendants.
RELIEF
32. From the discussion as aforesaid, the following reliefs are hereby granted :
A. Decree of permanent injunction is passed in favour of the plaintiff and against the defendants, thereby restraining them from undertaking any illegal/unauthorised construction at the common shaft situated between the premises no. C - 244 and C - 245 East End Apartments, Mayur Vihar, Phase - I, Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 29/30 Delhi - 91 (shown in site plan Mark A and as enunciated in Local Commissioner report dated 02.07.2014 read along with the photographs and the video (in a CD) filed alongwith) B. Decree of mandatory injunction is passed in favour of the plaintiff and against the defendants, thereby directing both defendants nos. 1 and 2 to demolish/remove the illegal/unauthorised construction raised at the common shaft situated between the premises no. C - 244 and C - 245 East End Apartments, Mayur Vihar, Phase - I, Delhi - 91 and restore the common shaft in its original condition (shown in site plan Mark A and as enunciated in Local Commissioner report dated 02.07.2014 read along with the photographs and the video (in a CD) filed alongwith) Parties to bear their own cost.
Decree-sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
Digitally
signed by
GAURAV
GAURAV SHARMA
Announced in the open Court SHARMA Date:
2025.02.28
on 28.02.2025 16:51:42
+0530
(Gaurav Sharma)
JSCC-cum-ASCJ-cum-Guardian Judge
East/KKD Courts/Delhi
28.02.2025
Civ Suit No. 7778/2016 Raj Bala Verma Vs. Mahesh Saxena Pg. No. 30/30