Delhi District Court
Sh. Raj Gopal Saxena vs Smt. Nisha Saxena on 5 July, 2012
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI:
ADDITIONAL SENIOR CIVIL JUDGE (SOUTH),
SAKET COURTS, NEW DELHI.
CS No. 1616/2009
Unique Case ID No. 02403C0421092009
Sh. Raj Gopal Saxena
S/o late Sh. Har Gopal Saxena
R/o B5/111, First & Second Floor,
Safdarjung Enclave,
New Delhi.
...Plaintiff
Versus
1. Smt. Nisha Saxena
W/o Late Sh. Sartaj Gopal Saxena
2. Sh. Nitesh Gopal Saxena
S/o Late Sartaj Gopal Saxena
Both Resident of
21A, Vijay Mandal Enclave,
IIT Gate, Hauz Khas,
New Delhi
And Also at
B5/111, Ground Floor,
Safdarjung Enclave,
New Delhi
...Defendants
DATE OF INSTITUTION : 17.12.2009
DATE OF RESERVING JUDGMENT : Not Reserved
DATE OF PRONOUNCEMENT : 05.07.2012
CS No. 1616/2009 Page No. 1 of 11
SUIT FOR DAMAGES, MANDATORY AND PERMANENT
INJUNCTION
JUDGMENT
1. Plaintiff filed the present suit for damages, mandatory and permanent injunction against the defendants on 17/02/2009, wherein he has prayed for the following reliefs:
(a) To pass a decree of Mandatory Injunction and Permanent Injunction directing the defendants to clear the termite and other insects at the ground floor property bearing no. B5/111, Safdarjung Enclave, New Delhi (hereinafter referred to as "Said Property");
(b) To pass a decree of Permanent Injunction directing the defendants to maintain the property at ground floor of the property bearing no. B5/111, Safdarjung Enclave, New Delhi in future;
(c) To pass a decree of damages of Rs.1,00,000/ (Rupees One Lacs Only) in favour of plaintiff and against the defendants which has been borne by the plaintiff for repairing and for pest control and the cost of the suit.
CS No. 1616/2009 Page No. 2 of 11
2. Brief facts of the plaintiff's case is that Late Sh. Har Gopal Saxena, the father of the plaintiff, before his death executed a registered Will dated 25/05/1986. As per the Will, the ground floor of the suit property came to the share of Late Sh. Sartaj Gopal Saxena and first floor and above came to the share of plaintiff. After the death of Late Sh. Har Gopal Saxena, the plaintiff who was in possession of the suit property, applied for sanction for the construction of first and second floor of the suit property. The plaintiff after getting the sanction in the year 1999 got completed the construction in September, 2000. After construction of the first floor and second floor of the suit property, the plaintiff along with his family shifted to the first floor. The defendants never occupied the ground floor of the suit property. The defendants filed C.S. (OS) No.179/2004 for partition of second floor of the suit property before Hon'ble High Court of Delhi. During the proceedings in the suit, the matter was finally settled between the parties. As per the settlement dated 22/05/2008, the defendants withdrew the suit and gave up the claim in the second floor and terrace above. After the settlement, the ground floor is in possession of the defendants and they are responsible for maintenance of the ground floor, which in fact is neglected by them. It is alleged that due to the negligence of the defendants the plaintiff and the other neighbours are CS No. 1616/2009 Page No. 3 of 11 facing problem as the insects and termite are breeding in the ground floor of the suit property due to unhygienic conditions. It is further alleged that because of the negligence on the part of the defendants for last two years, termites are damaging the suit property and they are spread up to the first floor of the suit property and damaged the wooden articles and furniture of the plaintiff. The plaintiff time and again requested the defendants for proper termite/pest treatment but to no avail. It is stated that due to non maintenance of ground floor by the defendants the plaintiff and neighbours have the fair chance of contacting with disease like Dengue, Malaria and other related diseases apart from damages caused by termites, which is a health concern for the plaintiff and his family. According to plaintiff, he got his wooden furniture repaired twice which were ruined due to the termites and the mice and has spent an amount of Rs.1,00,000/ (Rupees One Lacs Only) on termite treatment and repairing of wooden furniture. The property is in danger because of the proliferation of pests due to the utter negligence and callousness of the defendants. The pests, if not checked in time, may cause substantial damage to the walls, windows and doors of the property. The jet pump which was installed in the ground floor by the plaintiff during the life time of his mother Late Smt. Kirpa Devi could not be used as the ground floor had remained CS No. 1616/2009 Page No. 4 of 11 locked and its service is not possible. As a result, the pipes have to be disconnected and removed from the jet pump.
3. The defendants have contested the suit of the plaintiff by way of filing the Written Statement wherein they took preliminary objections that the suit of the plaintiff is devoid of cause of action. The suit of plaintiff is an abuse of the process of law. The suit is not maintainable in the present form. The suit of the plaintiff is nothing but an arm twisting tactics and in order to avoid his obligations towards the defendants to perform his part of obligation in respect of decree passed by the Hon'ble High Court of Delhi in the suit no.179/2004. The plaintiff has not come to the court with clear hand and has suppressed the material facts from the court.
4. On merits, it is stated that the defendants filed the suit for Partition, Prohibitory and Mandatory Injunction before Hon'ble High Court of Delhi, New Delhi where the parties entered into compromise. In terms of the decree passed by Hon'ble High Court of Delhi in the said suit, the plaintiff and the defendants have to share the stamp duty for the preparation of decree in equal share. The defendants spent a sum of Rs.1,05,000/ towards the preparation of the final decree passed by Hon'ble High Court of Delhi but the plaintiff did not contribute his share towards the same. It is further stated that a sum of CS No. 1616/2009 Page No. 5 of 11 Rs.99,500/ was also spent for converting the property from leasehold to freehold and a sum of Rs.5,995/ was paid by the defendants for conveyance deed. The plaintiff has also not made any contribution towards ground rent and for conveyance deed. Rest of the averments made in the suit have been denied by the defendants.
5. By order dated 18.05.2010, learned Predecessor of the Court framed the following issues for adjudication of the matter for trial:
i. Whether the suit is devoid of cause of action as plaintiff has contributed his share towards expenses for preparation of final decree passed by Hon'ble High Court between parties in Suit No. 179/04? OPD. Deleted vide order dated 05/07/2012. ii. Whether plaintiff has not come to Court with clean hands and has suppressed material facts of compromise and a decree passed by Hon'ble High Court, Delhi? OPD.
iii.Whether the plaintiff is entitled to the relief of Mandatory injunction as prayed for? OPP.
iv.Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
v. Whether the plaintiff is entitled for damages, if so, upto what amount and from what period? OPP.
vi.Relief.
CS No. 1616/2009 Page No. 6 of 11
6. I have heard and considered the submissions advanced by learned counsel for both the parties and gone through the testimony of witnesses and the documents proved by them during their deposition. On the basis of material available on record, my issue wise findings are given as under: ISSUE NO. 2 Whether plaintiff has not come to Court with clean hands and has suppressed material facts of compromise and a decree passed by Hon'ble High Court, Delhi? OPD
7. In order to discharge the onus to prove the issue, both the defendants got examined themselves as DW1 and DW2 respectively. DW2, Nitesh Gopal Saxena filed his evidence by way of affidavit wherein he has mentioned nothing about the suppression of the facts as alleged in the written statement. DW1, Smt. Nisha Saxena also filed her evidence by way of affidavit wherein she has reiterated and re affirmed the same facts as is stated in the written statement. The defendants have failed to prove on record that the plaintiff suppressed the material facts in respect of compromise and decree passed by Hon'ble High Court of Delhi. The plaintiff in para no.7 and 8 of the suit has categorically mentioned about the filing of the suit for partition by the defendants against him before Hon'ble High Court of Delhi. CS No. 1616/2009 Page No. 7 of 11 Even in his crossexamination PW1 admitted that the suit filed by the defendants against him was compromised in the Hon'ble High Court of Delhi in the year, 2008. There is no suppression of material facts by the plaintiff as alleged by the defendants in their written statement. The defendants have miserably failed to discharge the onus to prove the issue. Accordingly, this issue is decided against the defendants. ISSUE NO. 3
Whether the plaintiff is entitled to the relief of Mandatory injunction as prayed for? OPP.
AND ISSUE NO. 4 Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
8. Onus to prove the aforesaid issues lies on the plaintiff. In the course of arguments, learned counsel for plaintiff submitted that after filing of the suit, the defendants have sold the suit property to one Ms. Ruby Marwaha and they are not in possession of the suit property. In view of the statement given by the counsel for plaintiff, the relief with respect to mandatory and permanent injunction was dismissed as withdrawn. Both the issues are being disposed off as having become infructuous as submitted by the counsel for the plaintiff. CS No. 1616/2009 Page No. 8 of 11 ISSUE NO. 5
Whether the plaintiff is entitled for damages, if so, upto what amount and from what period? OPP.
9. Onus to prove this issue lies on the plaintiff. In order to discharge the onus to prove the issue, the plaintiff has got examined himself as PW1. The plaintiff has filed his evidence by way of affidavit wherein he has reiterated and reaffirmed the same facts as has been stated in the plaint. The plaintiff in his suit alleged that due to negligence of the defendants, he and his neighbours are facing problem as the insects and termites are breeding in the ground floor of the suit property due to unhygienic conditions. The plaintiff has failed to examine any of the neighbours, who were / are facing problems due to unhygienic condition of the suit property. The plaintiff in his affidavit stated that he time and again requested the defendants orally, whenever they visited the suit property, for the proper termite / pest treatment, but to no avail. On the other hand, in his crossexamination he admitted that he tried to contact defendants for the problem faced by him but he failed to get in touch with the defendants. He stated that he wrote letters to their advocate. The plaintiff could not tell the name of the advocate to whom the letters were sent. Except the bald statement of the plaintiff, there is nothing on record to show that the plaintiff CS No. 1616/2009 Page No. 9 of 11 made any complaint to the defendants regarding the unhygienic condition of the suit property. The plaintiff failed to examine any of the neighbours who faced similar problem with that of the plaintiff as alleged in the suit. The plaintiff has failed to disclose as to whether he made any complaint to the Municipal Authorities or to any other authorities regarding the unhygienic condition of the building kept by the defendants. The plaintiff has failed to prove the bills on record which he incurred on the termite treatment and for repairing of the wooden furniture done by him. The plaintiff is an interested witness. In the absence of any corroboration of his testimony from other witnesses i.e. the neighbours who are alleged to have similar problem with that of the plaintiff, it would not be safe to rely upon the sole testimony of the plaintiff to decree his suit. On the other hand, DW2, Smt. Nisha Saxena during the course of her crossexamination stated that she got the suit property pest controlled during the period between 200811. She stated that she used to hire servant and got the property cleaned. She denied the suggestion that she did not maintain the suit property properly and therefore, the property was damaged due to termite. She further denied the suggestion that due to non maintenance of the suit property, the plaintiff suffered financial losses. CS No. 1616/2009 Page No. 10 of 11
10. The plaintiff has miserably failed to prove on record that due to the negligent act of the defendants, the plaintiff had to spent an amount of Rs.1,00,000/ on termite treatment and repairing of wooden furniture. The plaintiff has further failed to prove on record that the amount alleged to be incurred by him was necessitated due to the act of the defendants. The plaintiff has failed to discharge the onus to prove the issue. Accordingly, this issue is decided against the plaintiff.
RELIEF
11. In view of my observation and findings on issue no.5, the suit of the plaintiff is dismissed. Parties are left to bear their own cost. Decree sheet be prepared. File be consigned to Record Room.
(Announced in open Court (Raj Kumar Tripathi)
on 05.07.2012 Additional Senior Civil Judge (South)
Saket Courts, New Delhi.
CS No. 1616/2009 Page No. 11 of 11