Delhi District Court
Syed Zakir Ali vs Sunita Sharma Ors on 10 April, 2024
IN THE COURT OF SH. PARVEEN SINGH,
ADDL. DISTRICT JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURT, DELHI.
CS DJ No. 616741/2016
CNR No. DLCT010012662012
Syed Zakir Ali,
s/o Syed Zafar Ali,
r/o H. No. 1439-40, Murliban,
Bazar Chitli Qabar,
Jama Masjid, Delhi-110006. ......Plaintiff.
Versus
1. Sunita Sharma,
w/o Sh. Sanju Sharma,
r/o Property no. 833,
Chandani Mahal,
Darya Ganj, New Delhi-110002.
2. Anil,
s/o Sh. Luchhapath Roy,
r/o 3867, Gali Kayastian Khan,
Charakhewalan, Delhi-06.
3. Haji Jalaluddin @ Jalal,
s/o Sh. Nawabuddin,
r/o H. No. 2208/13, Shankar Gali,
Sita Ram Bazar, Delhi.
4. Dhamender Grover,
s/o Sh. S.K Grover,
r/o 56, Sandeshi Vihar,
Pitampura, Delhi-110088.
5. North Delhi Municipal Corporation,
Through its Commissioner,
Dr. S.P Mukherjee Civil Centre,
JLN Marg, Minto Road, New Delhi. ..... Defendants.
Digitally signed
by PARVEEN
SINGH
CS No. 616741/2016 PARVEEN Date:
SINGH
No. 1 of 20 2024.04.10
16:14:10
+0530
Date of Filing : 27.09.2012.
Date of Arguments : 09.04.2024.
Date of Judgment : 10.04.2024.
SUIT FOR RECOVERY OF RS.14,00,000/-
JUDGMENT
1. The present suit for recovery has been filed by the plaintiff against the defendants.
2. The case of the plaintiff as per plaint is, that plaintiff is one of the owners of property bearing municipal nos. 831 to 836, popularly known as Municipal no. 833, Chandani Mahal, Darya Ganj, New Delhi, vide sale deed no. 7119 dated 23.10.2003, measuring 123 sq. yards. Out of the aforesaid property, 53 sq. yards was built upto second floor. The property of the plaintiff was comprising a godown hall on the ground floor which was occupied by the plaintiff. A hall, kitchen, toilet and bathroom on the first floor was let out to one Sh. Nasir at a monthly rent of Rs.4500/- and one hall, kitchen, toilet and bathroom on second floor was let out to one Sh. Sajid at a monthly rent of Rs.3,000/-. Defendant no. 1 is one of the owners of property no. 833, Chandani Mahal, Darya Ganj, New Delhi vide sale deed no. 6909 dated 09.06.2011. It is further submitted that the defendant no. 1 started demolishing her property through defendant no. 2 Anil. Defendant no. 2 further entrusted the task of demolition to defendant no. 3 Haji Jalaluddin. In the course of demolition of portion of defendant no. 1, a plinth was dug in a callous manner which led to collapse of the whole building/ katra including the 53 sq. yards of the plaintiff on 27.09.2011 at 07.50 p.m. The plaintiff had lodged his objection when the defendants started demolishing the property but the defendants did not bother. This Digitally signed by CS No. 616741/2016 PARVEEN PARVEEN SINGH No. 2 of 20 SINGH Date:
2024.04.10 16:14:21 +0530 intentional and deliberate act of the defendants had caused loss of many lives and FIR No. 86/2011 u/s 304 IPC was lodged at PS Chandni Mahal. It is further submitted that this act of the defendants had caused a loss of Rs.14 lacs to the plaintiff on account of cost of construction and loss of rental income. Hence, the present suit.
3. On being served with the summons of the suit, defendants filed their written statements.
4. Defendant no. 1 in her written statement had taken a preliminary objection that the plaint had not been verified at all as required under Order VI Rule 15(2) CPC and deserved to be rejected. A further preliminary objection was taken that the plaintiff had not come to the court with clean hands. It was submitted that the answering defendant had entered into an agreement to sell dated 14.07.2011 with Sh. Dharmendra Grover and sh. Anil Kumar to sell her property. After receiving the part consideration amount, plaintiff had handed over the possession of the property owned by her to above named purchasers. Since the answering defendant had sold her property, there was no question of demolishing her property by the answering defendant. It was further submitted that the portion owned by plaintiff was in a very dangerous condition and was not fit for habitation. Because of the bad condition of the said portion, the alleged incident had taken place. No FIR was registered against the answering defendant for alleged incident. On merits, all the averments made in the plaint were denied.
5. Defendant no. 2, in his written statement, had taken a preliminary objection that the present suit did not disclose any cause of action against the answering defendant. No proper court fee had been paid and the suit had not been verified in accordance with the provisions of Digitally signed by PARVEEN CS No. 616741/2016 PARVEEN SINGH Date: SINGH No. 3 of 20 2024.04.10 16:14:30 +0530 Order VI Rule 15 CPC.
6. On merits, it was submitted that answering defendant alongwith Sh. Dharmender Grover entered into an agreement to sell with defendant no. 1 on 14.07.2011 for a total consideration of Rs.80 lacs. Out of the said amount, a sum of Rs.15,40,000/- had been paid to the owner and the balance amount was to be paid on or before 14.11.2011. It was a condition that only after the payment of remaining amount, defendant no. 1 would deliver the actual and vacant possession of the said property to them.
The answering defendant had never remained in possession of the property owned by defendant no. 1. It was further submitted that the entire building situated on the property known as Municipal No. 833 was an old building and was in dilapidated condition. The MCD officials had declared that building as dangerous and intimation to this effect had been sent to the occupants of the building. The building had collapsed due to its bad condition. Rest of the averments made in the plaint were denied.
7. In the written statement filed on behalf of defendant no. 3, a preliminary objection was taken that the plaintiff had not come to the court with clean hands. The answering defendant was a businessman carrying out the business of handicraft. Defendant no. 3 had no concern with the alleged construction of the building. Name of answering defendant had been given in the FIR due to bitter relations of the answering defendant with MLA Shoaib Iqbal. It was further submitted that the portion which had fallen down was in a very dangerous condition and was not fit for habitation. MCD had also clarified that the property no. 833 was earlier inspected prior to the date of incident and it was found that the owner was dismantling the old structure without any prior approval of MCD and the work was stopped by MCD. On merits, all the averments made in the plaint were denied.
Digitally
signed by
PARVEEN
PARVEEN SINGH
CS No. 616741/2016 SINGH Date:
2024.04.10
No. 4 of 20 16:14:46
+0530
8. Defendant no. 4, in his written statement, a preliminary objection was taken that the suit was liable to be rejected under Order VII Rule 11 CPC as there was no cause of action in favour of the defendant.
9. It was submitted that the defendant was not the owner of the suit property i.e. H. No. 833, Chandni Mahal, New Delhi and had not been in possession thereof at any point of time in any capacity. Answering defendant and defendant no. 2 entered into an agreement to sell with defendant no. 1 on 14.07.2011 for purchase of 70 sq. yards of property bearing H. No. 833, Chandni Mahal for a consideration of Rs.80 lacs. Out of the said amount, Rs.15.40 lacs was paid by the answering defendant and defendant no. 2 to defendant no. 1. It was agreed that after payment of balance amount, the sale deed would be executed and possession would be handed over by defendant no. 1 to defendant no. 2 and defendant no. 4. Since no balance consideration was paid, the answering defendant never became the owner of the said property. It was further submitted that the report dated 23.11.2011 filed by MCD regarding the collapse of property no. 833, Chandni Mahal clearly proved that that no construction activity was going on as alleged by the plaintiff and the building was collapsed due to its old structure. Rest of the averments made in the plaint were denied.
10. Defendant no. 5, in its written statement, had submitted that a complaint was received on 27.09.2011 at 08.05 p.m in the Zonal Control Room regarding the collapse of the suit property. The officials of North DMC reached at the site and it was found that the suit property had collapsed. On local inquiry, it was revealed that the said property was more than 75 years old and was structurally weak and owner of the ground floor was trying to change the door. During the said activity, the entire building crashed. The property adjacent to suit property was earlier inspected and it Digitally signed by PARVEEN CS No. 616741/2016 PARVEEN SINGH Date: No. 5 of 20 SINGH 2024.04.10 16:14:57 +0530 was found that the owner was dismantling the old structure without any prior approval of MCD. Thus, the work was stopped. It was further submitted that the property no. 833 had collapsed due to its old structure. On merits, all the averments made in the plaint were denied.
11. In the replications to the written statements, the contents of the written statement are denied and the contents of the plaint are reaffirmed.
12. Thereafter, vide order dated 14.11.2014, following issues were framed:-
1. Whether the plaintiff is entitled for a decree of Rs.14,00,000/- against the defendants? OPP.
2. Whether the suit is bad for non joinder and mis joinder of parties? OPD.
3. Whether the suit is barred by limitation? OPD.
4. Whether the plaintiff has no cause of action for filing the present suit against the defendants? OPD.
4. Relief.
13. Thereafter, vide order dated 20.10.2015, following additional issues were framed:-
1. Whether the suit of the plaintiff is barred under Order VII Rule 11 CPC against the defendant no. 5? OPD-5.
2. Whether the suit of the plaintiff is bad for mis joinder and non joinder of parties? OPD 5
14. Thereafter, parties led their respective evidence. Plaintiff examined Syed Zakir as PW1, Rakesh as PW2 and Naresh Kumar Saini as PW3. On the other hand, defendants examined Sanju Sharma as DW1, Anil Saini as DW2, Haji Jalaludidn as DW3 and Dharmender Grover as DW4.
Digitally signed by PARVEEN PARVEEN SINGH SINGH CS No. 616741/2016 Date:
2024.04.10 16:15:06 No. 6 of 20 +0530
15. I have heard ld. Counsels for parties and perused the record very carefully.
16. At the very outset, ld. Counsels for defendants have submitted that they are not pressing the issue no. 2 and additional issue no. 2. It is further jointly submitted that they are not pressing the issues no. 3, 4 and additional issue no. 1. They have submitted that the plaintiff has completely failed to prove its case and therefore, they are not pressing upon these issues.
17. My findings on Issue no. 1 are as under:-
ISSUE NO. 11. Whether the plaintiff is entitled for a decree of Rs.14,00,000/- against the defendants? OPP.
18. Ld. Counsel for plaintiff has contended that it is an admitted position that the building of the plaintiff had collapsed which certainly requires reconstruction. He has further contended that the building of the plaintiff had collapsed due to the conduct of defendants no. 1 to 4. Defendant no. 1 was the owner of the adjoining property is also an admitted fact. The fact that defendant no. 1 had sold her property to the defendants no. 2 and 4 vide an agreement to sell is also not denied. He has further contended that defendants no. 2 and 4 started to dismantle the adjoining property and they were digging up the said property for the purposes of construction which resulted in collapse of the building of the plaintiff. Thus, they are liable to pay the actual damages i.e. the cost of reconstruction which has been proved by the plaintiff through PW3. He has further contended that plaintiff through his own testimony proved that building had fallen down because of the construction and digging activities carried on by the defendants no. 2 and 4 and defendant no. 1, being the CS No. 616741/2016 Digitally signed by PARVEEN No. 7 of 20 PARVEEN SINGH Date:
SINGH 2024.04.10 16:15:14 +0530 owner of the property, is liable for the same. He has further contended that the testimony of plaintiff that it was the conduct of the defendant that the resulted in collapse of the building of the plaintiff has remained completely unrebutted. He has further contended that an FIR of the incident bearing FIR No. 86/2011 u/s 304/377/378 IPC was lodged at PS Chandni Mahal and this had been proved by PW2 as Ex.PW2/A. This FIR clearly proves that it was Haji Jalaluddin, Anil and others who were digging the adjoining property which resulted in collapse of the plaintiff's building.
19. Countering it, ld. Counsel for defendants have contended that the plaintiff has failed to prove that because of any construction activity being carried out by the defendants, the building of the plaintiff collapsed. They have further contended that the plaintiff was cross examined and the claim of ld. Counsel for plaintiff, that the testimony of plaintiff regarding the cause of collapse of building has remained unrebutted, is completely false because during the cross-examination by every defendant, it was suggested to the plaintiff that the building was more than 75 years old and was in dangerous condition and that is why the weak building fell when the plaintiff himself was replacing the doors on the ground floor. The plaintiff initially stated that the building was not more than 25 years old but during the later part of his cross-examination, he admitted that the building was more than 75 years old. Though the plaintiff had denied these suggestions but at the same time, it cannot be said that the testimony of the plaintiff has been unrebutted. They have further contended that the plaintiff has also not been able to prove the actual damage as the valuer who was examined by the plaintiff himself admitted that he was not having requisite qualification to give an estimate of the cost of the construction. Even otherwise, the report of the valuer cannot be considered because the said report was not Digitally signed by PARVEEN CS No. 616741/2016 PARVEEN SINGH SINGH Date:
No. 8 of 20 2024.04.10
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allowed to be taken on record by the court when the plaintiff sought to exhibit it and that being the case, the said report cannot be produced on record through the valuer.
20. I have considered the rival submissions and perused the record very carefully.
21. In order to succeed in having a decree of Rs.14 lacs against the defendants towards the damages/ cost of construction of his building, which had collapsed on 27.09.2011, plaintiff has to prove two facts. One being what was the cause of collapse of the building and in continuation, he has to prove that the cause of collapse of the building was due to the conduct of the defendants. Second fact which the plaintiff has to prove is the amount of actual damage i.e. the cost of reconstruction.
22. The sole witness examined by the plaintiff in order to prove the cause of collapse of his building is the plaintiff himself.
23. Plaintiff, appearing as PW1, deposed that the respondent no. 1, who was the owner of the property adjoining to his property, had started demolishing her property through the respondents no. 2 and 4 who further entrusted the task of demolition to respondent no. 3 and as such the task of demolition remained under the control and supervision of respondent no. 1. During the course of demolition of the portion of the property owned by respondent no. 1, a plinth was dug in an utterly callous manner without taking due care of the safety of the adjacent/ connected property belonging to him which led to collapse of the whole building/ katra measuring 53 sq. yards built upto second floor. He further deposed that he had lodged his objections when the respondents started demolishing the property that it may cause damage to the property but the respondents did not care to pay any heed to it. Due to this, his whole building turned into rubbles on Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH No. 9 of 20 SINGH Date:
2024.04.10 16:15:31 +0530 27.09.2011 at about 07.50 p.m. An FIR bearing no. 86/2011 u/s 304 IPC was lodged at PS Chandni Mahal.
24. He was cross examined at length.
25. During his cross-examination on behalf of defendant no. 2, he deposed that he had purchased the property, which had collapsed, for a consideration of Rs.1,20,000/-. The property which he had purchased was around 25 years old. The property was not constructed in his presence. He had no documentary evidence to show that the property was constructed around 25 years ago. He denied that the entire property bearing no. 833, Chandni Mahal was constructed about 100 years ago.
26. However, later on during his cross-examination on behalf of defendant no. 4 as conducted on 25.10.2016, he deposed that he did not know if the building was 75 years old or more.
27. During his further cross-examination on behalf of defendant no. 2, he denied that the foundation of his property was adjacent to the foundation of the latrines. He denied that the said latrines were in a very dilapidated condition. He denied that on 27.09.2011 in the evening, he, Irfan, Sayed and Raees had dismantled the said latrines with a view to reconstruct them and volunteered, that it was Sanjay, husband of defendant no. 1, who was reconstructing the said latrines. He denied that he had named Sanjay intentionally to involve him in a false case. He denied that he was getting the doors of the ground floor portion of his property changed or that the entire property no. 833 including his portion was in a very structurally weak condition. He denied that since he was getting the door changed and the other occupants were reconstructing the latrines adjacent to his property, jerks had taken place and entire property collapsed. He did not know whether the police reached the spot on 27.09.2011. He denied Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH No. 10 of 20 SINGH Date:
2024.04.10 16:15:41 +0530 that since he was the culprit, who was getting the doors of the ground floor portion changed and carrying reconstruction of latrines which resulted in collapse of entire building, he had fled from the spot. He further deposed that he was not aware of the document dated 23.11.2011 mark X which was the report of MCD filed in the court of Ms. Himani Malhotra, Ld. ASJ in the case titled Jallaluddin & Anr. He further deposed that he came to know about defendant no. 2 when the agreement was entered between defendant no. 2 Anil and defendant no. 1. He did not know when the agreement had taken place. He had not seen or read over the alleged agreement. He denied that Anil Kumar was never handed over the possession of the property in question by Sunita Sharma at any point of time. He had not seen any documents to prove the allegations made by him in para 5 of his examination in chief against the defendants no. 2 and 4. He denied that no loss had been caused to him by the conduct of Anil Kumar. He denied that his property had fallen down due to his negligence while removing the latrines existing behind his property.
28. During his cross examination on behalf of defendant no. 1, he denied that there was no negligence on the part of defendant no. 1 due to which his property had turned into rubbles. He denied that he had filed a false case against the defendant no. 1.
29. During his cross-examination on behalf of defendant no. 5, he denied that his property was more than 75 years old and was structurally weak. He did not know when the property was constructed. He deposed that he was not changing the doors of his property. He denied that the property had fallen because he was replacing the doors of the ground floor. He admitted that the property adjacent to the suit property was earlier inspected by MCD officers and found that owner of the buyer was Digitally signed by PARVEEN CS No. 616741/2016 PARVEEN SINGH Date: SINGH No. 11 of 20 2024.04.10 16:15:51 +0530 dismantling the old structure without any approval from MCD. He denied that the MCD had not stopped the demolition of his adjacent property. He was not aware if the CD had issued any work stop notice to the owner/ occupier. He denied that the property no. 833 was an old construction so it had fallen down. He admitted that he had not made any allegations against MCD in his plaint.
30. During his cross-examination on behalf of defendant no. 3, he deposed that he had personal knowledge of the fact that defendant no. 3 was the contractor when building was being demolished as he had seen him and his labour standing at the site. He denied that defendant no. 3 was into the business of handicrafts and was not a contractor. He denied that since, during the investigation of the criminal case, name of defendant no. 3 had transpired, he had impleaded him as a defendant in the present case. He did not know if MCD had given any report stating that the building was 90 years old. He had not challenged the report of MCD placed on record. He had not made any complaint prior to the demolition process was started by the defendant and volunteered, that his building was in perfect condition at that time. He denied that since he was removing the pillars of his property, the property demolished on account of his acts and omissions.
31. During his cross-examination on behalf of defendant no. 4, he deposed that he had come to know about the agreement between defendant no. 1 and defendants no. 3 & 4 and volunteered, that in fact, when the defendants were demolishing that property, he came to know about this fact. He had not seen the documents of purchase whereby Anil and Dharmender had purchased the property. He denied that he did not try to verify the documents/ agreement because he was well aware that defendants no. 3 & 4 were not in possession of that property. He had not Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH No. 12 of 20 SINGH Date:
2024.04.10 16:15:59 +0530 placed on record any document to show that defendants no. 2 & 4 had any entitlement to demolish the property and volunteered, that he had come to know about them only on the basis of documents of FIR. He denied that defendants no. 2 and 4 were not involved in the demolition action and volunteered, that he had seen them standing there when demolition was being done. He denied that the defendants no. 2 and 4 were neither the owners nor in possession of any portion of the property bearing no. 833, Chandni Mahal, New Delhi.
32. On the other hand, defendant no. 1 examined her husband Sanju Sharma as DW1, who deposed that his wife had already sold and agreed to sell her property i.e. portion of property no. 833, Chandni Mahal, Darya Ganj, Delhi, which was owned by her. This was done in terms of agreement to sell dated 14.07.2011 between his wife, Dharmender and Anil. After the receipt of part consideration, his wife had handed over the possession of the property owned by her to the above named purchasers. As the said purchasers could not pay the remaining consideration amount, the property was sold by his wife to a third party with the consent of the above said purchasers. He further deposed that neither he nor his wife had ever demolished or dug a plinth of the said property and had never permitted anyone including defendants no. 2 and 4 to do any digging or construction.
33. During his cross-examination, he deposed that he did not remember when the sale deed was executed by his wife in favour of a third party. He admitted that after the agreement to sell dated 14.07.2011 was executed, the possession was given to Anil Saini and Dharmender Grover. He did not know whether the purchaser had started dismantling the property through one Haji Jalal, defendant no. 3. He denied that plaintiff had warned him as well as other defendants against the negligent digging of Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH No. 13 of 20 SINGH Date:
2024.04.10 16:16:09 +0530 the plinth and apprehended collapse of his house by such callous and negligent digging by the defendants. He denied that due to the negligent digging of the plinth of his property, the adjacent house of plaintiff had collapsed on 27.09.2011 at about 07.50 p.m and volunteered, that there was no such digging being carried out. He denied that the house of the plaintiff was in habitable condition.
34. Defendant no. 4 Dharmender examined him as DW4 and deposed that he was not the owner of the property no. 833 and had not been in possession of the said property at any point of time and thus, suit was not maintainable against him. He deposed that he and defendant no. 2 had entered into an agreement to sell with defendant no. 1 on 14.07.2011 for purchase of 70 sq. yards of the property bearing no. 833, Chandni Mahal, New Delhi for a consideration of Rs.80,00,000/-, out of which Rs.15.40 lacs was paid by them to defendant no. 1. As per the terms and conditions of the agreement to sell, they were only to be handed over the possession of the property after the execution of sale deed. They could not pay the balance consideration and therefore, they never became the owners of the property and had never come into possession of the property. Thus, he and defendant no. 2 could never have any control on the affairs of the said property. He further deposed that the entire property bearing Municipal No. 833, Chandni Mahal was more 1000 sq. yards. It was more than 75 years old and was structurally weak and in dilapidated condition. The building had been declared dangerous by MCD and the building had collapsed due to its weak structure.
35. During his cross-examination, he denied that he alongwith defendant no. 2 had taken the possession of the property from defendant no. 1 after paying the initial amount of Rs.15.40 lacs and started demolishing Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH Date:
No. 14 of 20 SINGH 2024.04.10
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the property with the help of defendant no. 3 and volunteered, that the possession was not handed over to them because the same was to be handed over at the time of payment of remaining sale consideration. He denied that the property was demolished in an utterly negligent way i.e. by digging the plinth of the adjoining property of the plaintiff because of which, the fully built up second storied property of plaintiff turned into rubbles on 27.09.2011. He denied that the property of defendant no. 1 was under his and defendant's no. 2 control. He admitted that he, alongwith defendants 2 & 3, was an accused in FIR No. 86/2011 u/s 304 IPC PS Chandni Mahal. He denied that FIR was lodged against them for negligently demolishing the property of defendant no. 1. He admitted that the case pertaining to the said FIR was pending against him and other defendants. He denied that due to his negligence and the negligence of defendants no. 2 and 3, the second storied building of the plaintiff collapsed.
36. I have considered the rival submissions and perused the record very carefully.
37. It is correct that on 27.09.2011, the unfortunate incident had happened which had resulted in collapse of the building of the plaintiff and loss of many lives but the court has to go on the basis of evidence to find out whether as per the record and evidence produced, the cause of this collapse was the actions of the defendants?
38. Before proceeding, the claim of the plaintiff that all the defendants are collectively liable for the collapse of his building because defendant no. 1 had sold the property to defendants no. 2 & 4 who after coming into possession of the property was demolishing it through defendant no. 3, needs to be considered.
39. Apart from his oral testimony and FIR no. 86/2011 Digitally signed CS No. 616741/2016 by PARVEEN PARVEEN SINGH No. 15 of 20 SINGH Date:
2024.04.10 16:16:25 +0530 (Ex.PW2/A), plaintiff has not brought on record any evidence to prove this fact.
40. On the contrary, defendant no. 1, through her husband's testimony, had claimed that the possession was handed over to defendants no. 2 & 4. However, the agreement to sell between defendant no. 1 on the one side and defendants no. 2 & 4 on the other side clearly stipulates that the possession of the property would only be handed over to defendants no. 2 & 4 after they had paid the entire balance consideration. As per the admitted case of the defendant no. 1, they could not do so and the property was then sold to a third party. Therefore, it will be very difficult to fasten liability upon the defendants no. 2 & 4 in absence of any substantive evidence on behalf of the plaintiff about their actions.
41. Plaintiff, during his cross-examination, claimed to have seen defendants no. 2, 3 and 4 on the site during the digging and construction activities.
42. However, it is to be noticed that further during his cross- examination, he stated that he had come to know about defendants no. 2 & 4 only on the basis of FIR. That being the case, he would only have come to know about them after the FIR was registered i.e. after the incident had happened. Therefore, the testimony of the plaintiff regarding the involvement of defendants no. 2 & 4 comes under a shadow of doubt.
43. Even otherwise, the entire building had collapsed and the case of the plaintiff is, that it had collapsed because of the digging activities being carried out by the defendants which was done into the plinth of his property which resultantly collapsed.
44. In such cases, mere oral testimony of the plaintiff, in my opinion, will not be sufficient to establish the cause of collapse of the CS No. 616741/2016 Digitally signed by PARVEEN No. 16 of 20 PARVEEN SINGH SINGH Date:
2024.04.10 16:16:35 +0530 building. A mere digging cannot cause collapse of adjoining building unless the digging is done in a manner which would cause damage to the base of the adjoining property and for proving the same, it was necessary to show the depth of the pit that was being dug or if the depth was not enough to weaken the foundation of the adjoining property, the damage to the foundation of the building.
45. The same could have been done by proving the photographs of the property which the plaintiff has failed to bring. The plaintiff could have examined a structural engineer or an expert who would have examined the adjoining property and could have given an opinion to the court that the cause of fall of the property of the plaintiff was the actions of the defendant. However, the plaintiff did not bring any such evidence on record.
46. It is also to be seen that an inquiry had been conducted for this incident. The plaintiff could have produced the said inquiry report or could have examined the persons who had prepared that inquiry report to establish the cause of collapse of his building. However, plaintiff failed to do so.
47. Though the building of the plaintiff has fallen down and there has been loss of lives but to fasten a civil liability, probabilities are to be established to the cause of that collapse. Mere newspaper reports, which have been exhibited, would not be sufficient to establish that cause.
48. In these circumstances, I find that the plaintiff, through his own oral testimony, has not been able to establish that the cause of the collapse of his building was the actions of the defendants.
49. The second point regarding the damage suffered by the plaintiff due to the collapse of his building, is the cost of reconstruction.
Digitally
CS No. 616741/2016 signed by
PARVEEN
PARVEEN SINGH
No. 17 of 20 SINGH Date:
2024.04.10
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50. The plaintiff has produced PW3 to prove the estimated cost of reconstruction of his building.
51. Before proceeding further, it is to be seen that PW3 has sought to prove on record an office copy of report/ estimate prepared by him as Ex.PW3/1 and immediately, an objection was taken on behalf of the defendants that PW3 could not prove that report because the plaintiff, in his own examination in chief, had sought to prove this report. He was not allowed to do so. Prior to that, plaintiff had moved an application u/s 151 CPC to bring that report on record and vide order dated 09.02.2017, the said application to bring that report on record was dismissed and the said order has since become final.
52. This contention is correct as per record. That being the case, a report which was not allowed to be brought on record, cannot be brought on record by the plaintiff by an indirect route of having its copy proved by the person who had prepared that report. Thus, the said report cannot be considered.
53. Even otherwise, PW3 admittedly was not a qualified person to prepare an estimate as he himself had admitted, during his cross- examination, that he did not have any requisite qualification to be a valuer or to give valuation and his qualification was Draftsman (Civil) from Saini Technical Institute, Rohtak, Haryana. Meaning thereby, that he was a draftsman and not a valuer who could have given an estimate of actual loss suffered by the plaintiff.
54. I accordingly find that both the facts, which the plaintiff was required to prove, have not been proved by the plaintiff. Issue no. 1 is accordingly decided against the plaintiff.
Digitally signed by PARVEENPARVEEN SINGH Date: SINGH 2024.04.10 16:16:52 CS No. 616741/2016 +0530 No. 18 of 20 ISSUES NO. 2, 3 AND 4 & ADDITIONAL ISSUES NO. 1 & 2.
2. Whether the suit is bad for non joinder and mis joinder of parties? OPD.
3. Whether the suit is barred by limitation? OPD.
4. Whether the plaintiff has no cause of action for filing the present suit against the defendants? OPD.
Additional Issue no. 1. Whether the suit of the plaintiff is barred under Order VII Rule 11 CPC against the defendant no. 5? OPD-5. Additional Issue no. 2. Whether the suit of the plaintiff is bad for mis joinder and non joinder of parties? OPD 5
55. The onus to prove these issues was upon the defendants.
56. Though the defendants have not pressed these issues, however, even otherwise, the suit was filed within one year of the incident and thus, the suit was not barred by limitation. The plaintiff's building had fallen down and collapsed and he was seeking damages for the same, therefore, it cannot be said that the suit was without any cause of action and accordingly, it cannot be said that the suit of the plaintiff would be barred under Order VII Rule 11 CPC.
57. With regard to misjoinder and non-joinder of parties, it is to be seen that defendant no. 5 was impleaded by the order of the court. Defendants no. 2 & 4 were impleaded because according to the plaintiff, they had purchased the property from defendant no. 1. It is admitted that the defendant no. 1, defendant no. 2 and defendant no. 4 had entered into an agreement to sell. Therefore, at the time of filing of the suit, it cannot be said that there was misjoinder of the parties. These issues are accordingly disposed of as not pressed.
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2024.04.10
CS No. 616741/2016 16:16:59
+0530
No. 19 of 20
RELIEF
58. In view of the above findings, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to record room. Digitally signed by PARVEEN SINGH PARVEEN Date:
SINGH 2024.04.10
16:17:05
+0530
Announced in the open court (PARVEEN SINGH)
on 10.04.2024. ADJ-11, Central District,
(This judgment contains 20 pages and Tis Hazari Court, Delhi
each page bears my signature.)
CS No. 616741/2016
No. 20 of 20