Delhi District Court
Ms. Lalita Devi vs Sh. Om Parkash Makhija on 26 April, 2023
1
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No: DLWTO1-001229-2013
Suit No:611704/2016 ( New) & Old Case No:362/2013
Ms. Lalita Devi
W/o Sh. Narender Kumar Aggarwal
R/o M-110-A, Mohan Garden,
Uttam Nagar, New Delhi-110059 .....Plaintiff
Versus
1. Sh. Om Parkash Makhija
S/o Sh. Arjun Dass Makhija,
R/o A-2/30, Ashok Apartments,
Paschim Vihar, New Delhi-110063
2. Sh. Dalip Chandwani
S/o Sh. Prahlad Rai,
C/o M-110-A, Mohan Garden,
Uttam Nagar, New Delhi-110059
3. South Delhi Municipal Corporation
Dr. Shyama Prasad Mukherjee Civic Cenre,
JLN Marg, Minto Road,
New Delhi
Through its Commissioner.
4. The Deputy Commissioner (West District),
South Delhi Municipal Corporation,
West Zone, Community Centre,
Vishal Enclave, Rajouri Garden,
New Delhi-110027 .....Defendants
Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc.
2
SUIT FOR PERMANENT, MANDATORY INJUNCTION &
FOR DAMAGES
Date of Institution of suit :20-03-2014
Date reserved for Judgment :22-04-2023
Date of Judgment :26-04-2023
JUDGMENT
1. Plaintiff has filed the present suit for permanent, mandatory injunction and for damages against the defendants. The plaintiff has sought the following reliefs:-
(a) To pass a decree of permanent injunction in favour of the plaintiff and against the defendant no.1 &2 restraining them from raising any construction in future on suit property and;
(b) To pass a decree of mandatory injunction directing the defendant no.3&4 to demolish/remove the illegal/unauthorized construction made on plot No.M-
110-A, Mohan Garden, Uttam Nagar, New Delhi made by defendant no.1 &2, and
(c) To pass a decree of damages for Rs.15,00,000/- in favour of plaintiff and against the defendants caused by unauthorized construction made by defendant no.1 & 2 with the cost of the suit.
2. The case of the plaintiff, as enumerated in the Plaint is that, plaintiff is the owner in possession of property measuring 50 sq. yards bearing property no. M-110-A, Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 3 Khasra no.63/3, Mohan Garden, Uttam Nagar, New Delhi, as shown in green in the site plan attached with the plaint. It is stated that there was adjoining plot/portion of around 50 sq. yards bearing same no. i.e. M-110-A, Mohan Garden, Uttam Nagar, New Delhi, owned by defendant no.1, on the right side of property of plan as shown in red in the site plan. The defendant no.2 is a builder and started constructing the property resulting in damages to the property owned by the plaintiff. The matter was brought to the notice of defendant no.1 and 2, they assured the plaintiff that no damage will be caused to the property of the plaintiff in future. It is further stated by plaintiff that the matter was referred to the Welfare Association of the area and complaint was also made to defendant no.3 &4 on 28-02-2013 and 18-06-2013 but of no use.
3. It is averred by the plaintiff that due to damages caused to his property by the defendant no.1 & 2, he suffered a loss of Rs.15,00,000/- approximately and now they are living in their property in a fear as it can fell any time. It is stated that despite repeated requests, the defendant no.1 did not stop the illegal construction. Hence, the present suit.
4. In their written statement, the defendant no.1 &2 has raised preliminary objections, that suit of the plaintiff is barred u/s 478 of DMC act, 1957 as no such notice has been served upon the defendant no.3 &4 before filing the present suit. Answering defendants have also raised objection that there is no cause of action for filing the Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 4 present suit against them. Defendant no.1 &2 have further raised preliminary objection that plaintiff claims damages of a sum of Rs.15 Lacs but no court fees thereon has been paid, therefore, the present suit of the plaintiff is not maintainable. In their reply on merit, it is stated by defendant no.1 &2 in their written statement that plot no.110-A, Mohan Garden, Uttam Nagar, Delhi is owned by defendant no.1 and defendant no.2 is the brother in law of defendant no.1 and some necessary repairs were carried out in the aforesaid property. It is stated that earlier the coloy in question was unauthorized but later same was regularized and construction carried in the property has been protected u/s 3 of NCT of Delhi Laws (Special Provisions) Act, 2011. It is denied by the answering defendants that defendant no.2 has made unauthorized construction or that they promised the plaintiff that they will take care of property of plaintiff, if any, damage caused to it or same will be repaired by them as alleged by the plaintiff. It is submitted that defendants are not aware of any complaint filed by plaintiff with the Welfare Association of M Block. It is stated that defendant no.3 &4 cannot take any action against the construction in the property as same is protected by law as state above. It is further stated that no damage was caused to the property of the plaintiff nor any illegal or unauthorized construction was made by the defendant no.1 and 2. It is denied that a loss of Rs.15 Lacs or any part thereof has been caused to the property of the plaintiff. It is stated that at any rate Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 5 damage, if any, ought to have been caused to the property of the plaintiff as the property was unauthorized and illegally built and on account of poor building material used by the plaintiff, it might have got some cracks here and there for which defendant no.1 and 2 cannot be blamed. The defendant no.1 and 2 have denied other allegations of the plaintiff and prayed for dismissal of the suit of the plaintiff.
5. In their written statement, the defendant no.3 & 4 have also taken the objection regarding 477/478 of DMC Act for want of statutory notice upon them. It is stated that suit of the plaintiff does not disclose any cause of action against the answering defendant hence same is liable to be rejected u/o 7 rule 11 of CPC. In their reply on merits, it is stated by the defendant no.3&4 that as per their record , the owner/builder has carried out unauthorized construction without prior permission from the Corporation and without obtaining any sanctioned building plan, accordingly unauthorized construction in the property has been booked on 06-09-2023 and show cause notice u/s 343 & 344 of DMC Act has been issued and after passing of demolition order demolition action has been taken against the unauthorized construction in the property on 25-10-2013 and a roof slab of TF was partly demolished and toilet wall at 4th floor was punctured.
6. In his replications, the plaintiff has reiterated its earlier stand and controverted the averments made by the defendants in their respective written statements.
Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 6
7. From the pleadings of the parties the following issues were framed vide order dated 10-02-2015:-
(1) Whether present suit is not maintainable for want of notice u/s 478 DMC Act, as per preliminary objection no.1 of WS of defendant no.1 and 2 ? OPD (2) Whether the plaintiff has cause of action in her favour and against defendants ? OPP (3) Whether the present suit is not maintainable on ground of non-payment of court fees as per preliminary objection no.4 of WS of defendant no.1 &2 ? OPD (4) Whether the plaintiff is entitled to the relief claimed ? OPP (5) Relief.
8. Plaintiff Smt. Lalita Deve has examined herself as PW1 and filed her evidence by way of affidavit which is Ex. PW1/A bearing hers signature at point A and B. PW1 has relied upon the documents i.e. Ex.PW1/1 to Ex.PW1/3 and mark A to D ( Objected to by ld. Counsel for defendant no.1 & 2 qua mode of proof).
9. Plaintiff has also examined PW-2 Sh Ashok Kumar Kalyan, Retired Civil Engineer , Architect and Consultant with MCD, presently R/o 18C, AC Block, Shalimar Bagh, New Delhi, who has deposed that he has prepared the inspection report dated 11.03.2019 with respect to property no. M-110-A, Mohan Garden, Uttam Nagar, Delhi-59, which is Ex.PW2/1 bearing his signatures at point A on Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 7 each page.
10. No other witness has been examined by the plaintiff and plaintiff has closed his evidence on 17-10-2019.
11. The Defendant no.1 and 2 have examined D1W1- Sh. Om Parkash Makhija , who filed his evidence by way of affidavit Ex.D1W1/A (bearing his signatures at point A and B.
12. Defendants have examined D2W1 Sh. Dalip Kumar Chandwani, who has also filed his evidence by way of affidavit Ex.D2W1/A bearing his signature at point A and B. During his chief examination he has marked Gazzete Notification as Mark A and copy of Delhi Building Bye Laws as Mark B and photographs as Mark C to Mark I
13. No other witness has been examined by the defendant no.1 and 2 and their counsel has closed their evidence on 20-08-2022.
14. I have heard the argument of ld. Counsel for the parties and perused the material on record and also gone through the written submissions filed on behalf of the plaintiff & defendant no.1 and 2. My findings on the issues are as under:-
15. ISSUE No. (1) Whether present suit is not maintainable for want of notice u/s 478 DMC Act, as per preliminary objection no.1 of WS of defendant no.1 and 2 ? OPD Onus to prove this issue was upon the defendant. The defendant no.1 &2 has raised preliminary objections, that suit of the plaintiff is barred u/s 478 of DMC act, 1957 Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 8 as no such notice has been served upon the defendant no.3 &4 before filing the present suit.
16. In the present case the paintiff Lalita Devi (PW-1) has stated during her cross-examination that Legsl notice was served upon the MCD:
"...The construction has most probably commenced in the year 2012 and it has completed in the year 2014. I am not aware whether any plan for construction is sanctioned or not. It is wrong to suggest that I have not filed any complaint with municipal authority and Police against defendant no 1. I have served a legal notice to both MCD and Police in respect of unauthorised construction and I have also sent a legal notice to defendant no1...."
17. The provision of S.478(3) says:
"(3) Nothing in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
18. In "Babita v. Omwati" {C.R.P. No.259/2018 - (2019) 01 DEL CK 0206} the Hon'ble Delhi High Court had allowed the withdrawal of the petition in light of the S.478(3) of the DMC Act while observing " ...the requisite notice as mentioned in sub section (1) need not be given to the Corporation in suits where the only relief claimed is an injunction of which the object would be defeated by the Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 9 giving of the notice or the postponement of the institution of the suit."
19. In the present case the plaintiff has sought urgent relief of injunction, therefore sub-section(3) of S.478 applies. Thus Issue No.1 is decided against the defendants No.1 & 2 and in favour of the plaintiff.
20. ISSUE No. (2) Whether the plaintiff has cause of action in her favour and against defendants ? OPP Onus to prove this issue was upon the plaintiff. The case of the plaintiff is the defendant no.2 is a builder and started constructing the property resulting in damages to the property owned by the plaintiff. The matter was brought to the notice of defendant no.1 and 2, they assured the plaintiff that no damage will be caused to the property of the plaintiff in future. It is further stated by plaintiff that the matter was referred to the Welfare Association of the area and complaint was also made to defendant no.3 &4 on 28-02-2013 and 18-06-2013 but of no use. It is further the case of the plaintiff that she is living in a fear as it can fell any time. It is stated that despite repeated requests, the defendant no.1 did not stop the illegal construction. Hence, the present suit.
21. Cause of action is "every fact which is necessary to establish to support a right or obtain a judgement", "the facts which give occasion for and forms the foundation of the suit". In Om Prakash Srivastava v. Union of India, cause of action was termed to be a bundle of facts which Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 10 give cause to enforce the legal inquiry for redressal in a court of law. It is a bundle of facts, which, taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or arise." The expression has acquired a judicially settled meaning.
22. An injunction is an order of a court that restrains a person from continuing the commission of a wrongful act, or orders the person to commit a positive act to reverse the results of the wrongful act committed by him, that is, to make good what he has wrongly done. To receive injunction against a party one must prove damage. Damage to property is actionable In the case of Annamalai Chettiar vs A.M.K.C.T. Muthukaruppan Chettiar [(1935) 69 MLJ 274] it was held that the right to sue accrues "when the defendant has clearly or unequivocally threatened to infringe the right asserted by the plaintiff in the suit".
23. During cross examination of PW-1 by Ld counsel for defendant no 3 and 4, PW1 has stated as under:
"I have given notice to MCD prior to institution of suit. I have not filed any ownership document of the property except for an electricity bill. I have not filed the original of my electricity bill. It is incorrect to suggest that I am not the owner of the property bearing no. M-110 A, Mohan Garden, Uttam Nagar. It is wrong to suggest that I am deposing falsely."
24. In present case the plaintiff cannot be said to be Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 11 without 'cause of action'. The plaintiff was put several question on her ownership of her own house. However, the ownership is not the criteria for filing a suit where injunction is sought on the unauthorized construction in the next door neighbor. The only criteria necessary for seeking relief of injunction is that the plaintiff occupies her premises and feels threatened by the acts of the defendants. The present case is not a suit for declaration based on title. Thus Issue No.2 is decided against the defendants No.1 & 2 and in favour of the plaintiff.
25. ISSUE (3) Whether the present suit is not maintainable on ground of non-payment of court fees as per preliminary objection no.4 of WS of defendant no.1 &2 ? OPD Onus to prove this issue was upon the defendant. Defendant no.1 &2 have raised preliminary objection that plaintiff claims damages of a sum of Rs.15 Lacs but no court fees thereon has been paid, therefore, the present suit of the plaintiff is not maintainable.
26. In AIR 2001 Delhi 338 G.C. Kumar Vs. Ashok Kumar; it was held following 1941 Madras 929 (FB), 1937 PC 163 and 1924 PC 196 with reference to Sec.11 Central Court fees Act, Section 33 and Or.20 Rule 6 CPC that even if there is direction to pay additional Court fees in judgment, for non-payment the suit cannot be dismissed since there is no legal hurdle for preparing decree as per judgment where in the direction to pay additional Court fees made. The drawing of decree is the obligation of the Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 12 Court in terms of judgment, the only bar is for non- payment of deficit Court fees the decree drawn up become unexecutable until deficient court fees paid. The non- payment of balance Court fees only postpones the date on which decree to be executed. In the said judgment by the Division Bench of the Hon'ble Delhi High Court, the Single Bench decision dismissing suit for non payment of court fee was held bad in law. Thus Issue No.3 is decided against the defendants No.1 & 2 and in favour of the plaintiff.
27. ISSUE No. (4) Whether the plaintiff is entitled to the relief claimed ? OPP Thus onus to prove this issue was upon the plaintiff. The relief claimed by the plaintiff can be categorized as Relief of Injunction regarding unauthorized construction ;
Relief of Damages of Rs.15 Lakhs Relief of Injunction regarding unauthorized construction;
28. As far as the relief of injunction is concerned, the plaintiff has sought:
(a) To pass a decree of permanent injunction in favour of the plaintiff and against the defendant no.1 &2 restraining them from raising any construction in future on suit property and;
(b) To pass a decree of mandatory injunction directing the defendant no.3&4 to demolish/remove the Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 13 illegal/unauthorized construction made on plot No.M-110-A, Mohan Garden, Uttam Nagar, New Delhi made by defendant no.1 &2, and
29. It is the version of defendant no.3 & 4 (SDMC) that as per their record , the owner / builder has carried out unauthorized construction without prior permission from the Corporation and without obtaining any sanctioned building plan, accordingly unauthorized construction in the property had been booked on 06-09-2023 and show cause notice u/s 343 & 344 of DMC Act was issued and after passing of demolition order demolition action has been taken against the unauthorized construction in the property on 25-10-2013 and a roof slab of TF was partly demolished and toilet wall at 4th floor was punctured.
30. Cross-examination of D1W1-Sh. Om Parkash Makhija reveals:-
"..I am owner of property No:M 110 A but I do not know the other properties details. My property is 56 sq. yards. My property is old constructed property. My property is already constructed up to ground and first floor at the time of purchase. Today this property is having ground plus three floors. My property is not sealed by MCD today. However, same is partly demolished by the MCD during the pendency of this case. My property was not booked by the MCD. I never got received any notice in this regard. However, MCD might have sent the notice but I never received. I did not challenge the order of demolition till day."
Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 14 During his cross examination by Sh. Harbans Kaushal, ld. Counsel for the MCD, D1W1 has deposed as under:-
"At present I am the owner of the property in dispute. I purchased the property in the year 2013. I do not know whether I have filed the document regarding purchasing of my property in court record. On perusal of the record shows there is no document on record showing me the owner of property. I have no knowledge about the sanction plan of the property when I purchased the property in dispute. It is correct that at the time of purchasing the property I do not enquired from earlier owner whether the property is authorized or not. ...... It is correct that I have not taken any permission from the MCD regarding construction/repair in my property. I have no knowledge about the show cause notice issued by the MCD to the owner of the property. I am also not aware about the passing of demolition order passed by the MCD. It is correct that official of the MCD has demolished the unauthorized construction in my property in 2016 but I do not remember the date and month. It is correct that I did not file the site plan of my property. I am not liable to pay damages or compensation charges to the plaintiff as prayed by plaintiff in the present case.
31. As per the defendant's own cross-examination the premises of the defendant No.1 is partly demolished by the MCD during the pendency of this case and that the same was not challenge the order of demolition till day.
Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 15 Furthermore, it was admitted that the defendant no.1 at the time of purchasing the property he did not enquire from earlier owner whether the property is authorized or not and that no permission was taken from the MCD regarding construction in the property. Admittedly the MCD has demolished the unauthorized construction in the property in 2016.
32. The deposition and the evidence prove that the action against the unauthorized construction has already been taken by the defendants No.2 & 4 (SDMC). Therefore, the plaintiff's grievance has already been taken care of by the defendants No.3 & 4. Thus no relief can be granted to the plaintiff regarding the injunction aspect.
Relief of Damages of Rs.15 Lakhs
33. As far as the relief of damages is concerned, the plaintiff has sought decree of damages for Rs.15,00,000/- in favour of plaintiff and against the defendants caused by unauthorized construction made by defendant no.1 &2.
34. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it.
35. The Hon'ble Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 16 another,VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601
36. The onus of proving damages was on the plaintiff Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 17 who was examined as PW-1 and who revealed during her cross-examination she had not written any letter etc. for seeking damages etc. It was further admitted by PW-1 that there was no evidence of damages other than the photographs Ex.PW-1/2 (colly.). The plaintiff as PW-1 also stated that she had not filed any document to establish the loss of Rs.15 lakhs. No valuation report was filed by the plaintiff. The exact words of her cross-examination are thus:
"I had not written any letter to defendant no 1 and 2 to bring their notice, if any damage is caused to my house or extent of damage caused. Vol. It was only verbal communication with the defendant no. 1 and 2. I do not know the date when verbal communication had taken place. Except for the photographs, I do not have anything to show that damage has been caused to my property. The photographs Ex PW1/2(colly) shows my residence and the articles lying in my house and it shows the name plate of my house at page no. 107 of the record.
I have the negative of the photographs which I have placed on record and I can placed it on record if I am called upon to do so. I have not filed any document to establish the loss of Rs.15 lakhs i.e the damage caused to my house. It is correct that I have not filed any valuation report in respect of the damage caused to my property. It is incorrect to suggest that no damage has been caused to my property by the construction of house of defendant no 1. It is incorrect to suggest that I am deposing Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 18 falsely."
37. The plaintiff also examined another witness PW-2 who prepared a report but who admitted that he had filed no document to show that he was Civil Engineer. The witness PW-2 further admitted that he had no documents to show that his inspection reports were accepted by MCD and also by Hon'ble Courts. The said witness PW-2 also admitted that he had not filed the receipt on the basis of which it was observed in his report that construction was made during 2005-2006. The assessment of damage was made by PW-2 on the basis of his observation and also on the basis of circle rate of construction in H category. However, PW-2 had not filed the circle rate of construction. The assessment of PW-2 was merely on the basis of his experience of 34 years as an Engineer and 20 years as an architect. The damages as assessed by PW-2 was Rs.10 Lakh. There was no signature of plaintiff in the report of PW-2. During cross examination of PW-2 it was further revealed thus :-
"It is correct that I have not filed any document to show that I am a civil Engineer. I am a summoned witness. It is correct that I have not filed any request letter in writing from the plaintiff i.e Lalita Devi to inspect the property. Vol. It was an oral request. It is correct that I have not annexed any document to show that my inspection reports were accepted by MCD and also by Hon'ble Courts. I have not checked the ownership documents pertaining to the property which Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 19 was inspected by me. I have made inspection of ground floor, first floor and the construction that were made above first floor. It is incorrect to suggest that the property in question is constructed upto 4th floor. The observation in my report that construction was made during 2005 to 2006 was based on certain receipts pertaining to purchase of building material etc. It is correct that I have not filed the receipt on the basis of which it was observed in my report that construction was made during 2005-2006. The assessment of damage was made by me on the basis of my observation and also on the basis of circle rate of construction in H category. It is correct that I have not filed the circle rate of construction. Vol. This document is available in public domain. It is correct that no photograph of ground floor, first floor and other floor or any negative of the photograph showing the inspection has been placed on record by me. It is only on the basis of my experience of 34 years as an Engineer and 20 years as an architect, I can say that there was a damage of Rs.10 Lakh in the property inspected by me. It is correct that there is no signature of plaintiff in my report.
38. During the cross-examination D1W1- Sh. Om Parkash Makhija stated:
"At the time of construction of my building if any damage happened in the plaintiff building due to my fault I told the plaintiff to repair the damages but the plaintiff never agreed to the same. The photographs Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 20 Ex.PW1/2 (Colly) at page No:25 and 26 belongs to my property. I never deposited house tax of my property. Nor I have taken previous house tax receipts from earlier owner. Defendant No:2 is my brother in law. Defendant No:2 was carrying out the work of construction in my property, however, he is not a builder. Again said defendant No:2 was carrying out repairs works in my property on my instructions. Defendant No:2 doing the work of tailoring in Vikas Puri. I do not know whether any proceedings was initiated by Delhi Police u/s 133 Cr.PC against the defendant No:2. It is wrong to suggest that I am intentionally deposing falsely in this regard. It is wrong to suggest that plaintiff suffered a loss of 15 lacs due to my illegal constructions. It is wrong to suggest that I am deposing falsely. It is wrong to suggest that construction of my property is illegal and unauthorized".
39. The plaintiff has adduced photographs of her property which shows seepage and cracks on the walls. On this aspect the cross-examination of D2W1 Sh. Dalip Kumar Chandwani reveals thus:
"...There were some minor cracks caused to the property of plaintiff which were due to water collection on Kaccha road in front of property of plaintiff and defendant due to heavy rain in the street."
40. The law on award of damages is well settled. The same has to be real and proximate and not remote. Compensation in the case of a tortious claim can be Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 21 granted if `causation' is established. Even negligence by a party could result in grant of compensation/damages for loss suffered. Of course, if the Defendant's acts were deliberate or motivated, even punitive damages can also be awarded. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment. Thus, the full equivalent of money can be granted as compensation or damages in such cases. (see Sushil Kumar Jain vs Ganender Chopra RSA 75/2019 decided on 3 December, 2020).
41. Quantification of damages: In "Dal Chand Gautam vs Panickers Travels India Pvt. Ltd. {RFA No.184/2018 "wherein the only proof of damages was an unreliable inspection report, the Hon'ble Delhi High court upheld dismissal of the suit for damages and held that the alleged damage caused will have to be proved as per law and not merely on the basis of inaccurate / unreliable inspection report because the costs had been arrived at by the Expert without giving the basis on which the costs have been calculated i.e there was no reference to any rate sheet issued by any appropriate authority for construction or rate sheets with respect to sanitary or electrical work etc. Therefore the trial court was found justified in dismissing the suit as not only quantum of damages were not proved and also that damage to the property of the appellant/plaintiff was not proved as required by law.
42. In the present case the assessment of the PW-2 gives Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 22 incorrect assessment of damages as Rs.10 Lakhs, the too without any accurate calculation, whereas the plaintiff has sought damages of Rs.15 Lakhs without any calculation. The plaintiff has not been able to discharge its onus on the quantification of damages even as per the standard of "preponderance of probabilities".
43. The onus to prove this issue was upon the plaintiff.
In view of the finding, the plaintiff cannot be said to be entitled to any damages. Accordingly, this issue No.4 also stands decided in favour of defendants and against the plaintiff.
44. (ISSUE No. 5) Relief.
As a consequence to my findings on the above mentioned issues, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance. Digitally signed by VEENA VEENA RANI RANI Date:
2023.04.28 Announced in the open court. 10:30:08 +0530 ( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:26-04-2023 Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc. 23 IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST DISTRICT, TIS HAZARI COURTS, DELHI CNR No: DLWTO1-001229-2013 Suit No:611704/2016 ( New) & Old Case No:362/2013 Ms. Lalita Devi .....Plaintiff Versus Sh. Om Parkash Makhija & Ors .....Defendants 26-04-2023 Present: None for the plaintiff.
Sh.N.K. Sharma, ld. Counsel for the defendants. Written submissions filed on behalf of defendant no.1 &2. Written submission of plaintiff is already on record.
Put up for order at 4 pm. Digitally signed VEENA by VEENA RANI RANI Date:
2023.04.28 10:30:28 +0530 ( VEENA RANI ) ADJ-06(West),THC, Date:26-04-2023 At 4 pm Present: Plaintiff in person.
Sh.N.K. Sharma, ld. Counsel for the defendant no.1 & 2.
Sh. H. Kaushal, ld. counsel for defendant no.3 & 4. Vide my separate judgment, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be Digitally signed consigned to record room. VEENA by VEENA RANI RANI 2023.04.28 Date:
10:30:35 +0530 Announced in the open court. ( VEENA RANI ) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:26-04-2023 Suit No:611704/2016, Ms.Lalita Devi Vs. Sh. Om Parkash Makhija etc.