Delhi District Court
Raj Upman vs Raj Kumari on 17 September, 2015
IN THE COURT OF MS. POOJA TALWAR:
ACJ/CCJ/ARC(SOUTH EAST DISTRICT),
SAKET COURTS, NEW DELHI
CS No. 384/2013
Unique case ID No. 02406C0302712013
Raj Upman
W/o Sh. Gyan Prakash Upman
R/o 139B, Hari Nagar Ashram,
New Delhi. ......... Plaintiff
Versus
1. Raj Kumari
W/o Sh. Om Prakash Chauhan
2. Om Prakash Chauhan
S/o Late Nagar Ashram,
Both R/o House No. 139,
Hari Nagar Ashram, New Delhi. ......... Defendants
Suit instituted on : 28.10.2013
Arguments heard on : 11.09.2015
Judgment pronounced on : 17.09.2015
CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 1 of 10
JUDGMENT
1. The present suit has been filed by plaintiff against defendants seeking a decree of permanent injunction thereby restraining the defendants, their family members, supervisors, labourers, agents etc. from carrying out further structural changes and construction permanently. Further a decree of recovery in the sum of Rs. 1,86,190/ in favour of plaintiff and litigation charges, pendenete lite and future interest @ 15% from the defendants.
2. Brief narration of facts as set out in the plaint is that plaintiff is registered owner of property bearing no. 139B, Hari Nagar Ashram, New Delhi. Plaintiff has been residing in the said property since the year 1996 alongwith her family. Defendant no. 1 is the owner of adjoining property bearing House No. 139, Hari Nagar Ashram, New Delhi. Defendant no. 2 is husband of defendant no. 1 and is engaged in the work of flooring of buildings with marbles and tiles. Defendant no. 2 is a mischief monger who creates mischief by altering flooring, changing structures and walls of his house even in the odd hours which causes nuisance to the neighobours including the plaintiff. In the year 2009 plaintiff made renovation, distumper and paint work in her house then defendants started changing the structure of CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 2 of 10 their house by removing walls to convert them into flats. Due to effect of heavy iron hammer cracks developed in the wall of plaintiff's house. Both the defendants assured the plaintiff that they will take care of cracks which have developed in the walls of plaintiff's house. Later on around 2010, the basement of house of defendants was sold to one Smt. Beena Mahor who who made structural changes in the basement and converted it into a residential unit by constructing kitchen, bathroom etc. Due to constant leakage of water and structural changes of all the floors by the defendants, their house has tilted in the front side and a gap has developed between the house of plaintiff and defendants which has resulted in causing seepage in the house of plaintiff.
In the month of November, 2011, one of the members of defendants family threw a heavy hammer from top floor of their house deliberately which resulted in smashing the front glass of the car of plaintiff's husband. The repair of which costed Rs. 8,000/. Both the defendants apologized for the said incident. A few months later, a floor tile fell on the roof of the car of plaintiff's husband from the fourth floor of their house which caused heavy damage to the car. Nuisance has been created by defendants with their sole object of depriving the plaintiff's husband from parking his car besides the house of defendants. In the first week of August, 2013, both the defendants again started changing the structure of the ground floor and the top floor of CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 3 of 10 their house by pulling down the walls with heavy iron hammer. The impact of heavy iron hammer has resulted in widening of existing cracks in the house of plaintiff and has also developed new cracks. Despite request to stop the said constructions, no heed was paid by defendants. Due to such acts of the defendants, plaintiff was constrained to call PCR. Defendant no. 2 was called at the Police Station and was warned by the police to stop the construction. Damages caused by defendants to the property of plaintiff is estimated at Rs. 1,79,411/ approximately. Defendants were served with legal notice dated 12.08.2013 which was not replied. Hence, the plaintiff was constrained to file the present suit.
3. The defendants entered contest by filing their written statement. It is averred in written statement that the suit has been filed by plaintiff with an object to harass the defendants and to extort money from them. The suit is bad for nonjoinder of necessary parties. No cause of action has arisen in favour of plaintiff. No consequential relief has been sought by plaintiff. The plaintiff and her husband have been harassing the defendants by parking their car in front of the house of defendants. While defendants are constrained to park their car in the MCD parking which is far away from their house. The cracks as stated by plaintiff must have developed due to illegal constructions carried out by plaintiff and her husband without following the MCD Building byelaws etc. The foundation of the building of the plaintiff is weak to bear CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 4 of 10 the heavy weight of the five floors including the ground floor. In order to increase the space, plaintiff has extended the chajja of second floor, third floor and fourth floor in comparison to first floor thus putting more burden on the ground flour. The area of the plaintiff's plot is 34 sq. yards and is too small to bear the heavy load of building and so many floors. It is contended that the defendants have constructed their house in the year 199293 and after that they have not removed or installed even a brick or any construction. Seepage in the house of plaintiff has nothing to do with the defendants. The other allegations levelled against the defendants have categorically been denied.
4. Replication to written statement was filed on behalf of plaintiff which is a reiteration of averments in the plaint and denial of contentions in the written statement.
5. On the pleadings of both the parties, following issues were framed:
(i) Whether the plaintiff is entitled to a decree of damages in the sum of Rs. 1,86,190.? OPP
(ii) Whether the plaintiff is entitled to a decree of permanent injunction against the defendant thereby restraining the defendant, their family members etc from carrying out any further construction? OPP.
(iii) Whether there is a cause of action in favour of plaintiff' and against the defendant? OPD CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 5 of 10
(iv) Whether the suit is bad for non joinder of necessary party? OPD
(v) Whether the plaintiff has filed the present suit in order to extort money or with collectral purposes? OPD
(iv) Relief.
6. Evidence was led by both the parties by entering into the witness box and also examining other witnesses on their behalf.
7. I have heard the arguments advanced by rival counsels and have perused the records and documents filed on both sides.
8. Issue wise findings are as follows:
Issue No. 1 & 2: The onus to prove these issues was on the plaintiff. It was for the plaintiff to prove that she is entitled to damages in the sum of Rs. 1,86,190 from the defendants for causing damage to the property of plaintiff. Plaintiff in order to prove that the renovation work in her property would require a sum of Rs. 1,79,411.65 by examining PW2 Sh. Anil Chaudhary who is a Project Coordinator for the construction company. This witness was examined to prove that after inspection an estimate was given by the company that the renovation work of building of plaintiff which has been damaged and the cracks and seepage would require the aforesaid amount. The plaintiff has not examined any expert witness to prove that so called damage to the property of plaintiff has been caused due to some construction work carried CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 6 of 10 out in the building of the defendants. It is the claim of plaintiff that her property has been damaged due to frequent construction carried out by defendants in their property as defendant no. 2 is a Mason who every now and then carries out structural changes in his property. On one hand, plaintiff has tried to say that the financial position of defendant no. 2 is not so sound that he could construct the entire building which comprises of four floors and a basement at one time, on the other hand plaintiff has alleged that the defendants are frequently carrying out renovation and other structural changes in the building. A person who is not so welloff as alleged by plaintiff how can not spend money in bringing about structural changes in his building very often.
The other claim of plaintiff is that due to changes carried out in the basement by defendants when it was sold to Smt. Beena Mehor, (DW2 herein). After purchase, even Smt. Beena Mahor has carried out changes in the property due to which seepage has occurred in the property of plaintiff. This witness has categorically stated that there is a difference in the height of the property of plaintiff and defendants as there is a basement in the property of defendants, therefore, carrying out any construction in the basement would not affect the property of plaintiff. Defendant no. 2 has also denied any construction carried out by him in the property except the minor repairs. No document or photograph has been filed by plaintiff or any independent CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 7 of 10 witness examined to substantiate the claim that the defendant is carrying out construction and brining about structural changes in the property. No evidence has come on record to prove that the condition of the plaintiff's building i.e cracks and seepage is because of so called structural changes brought about by defendants in their property. Once the plaintiff has failed to establish that damage has been caused to her property because of defendants, she is not entitled to any damage.
The estimate filed by PW2 Sh. Anil Chaudhary would not be of any resort to the plaintiff for the reason that he has not deposed that the damage to the property of plaintiff has any connection with the alleged construction carried out in the building of the defendants. He has only filed the estimate of the expenses which would be involved in renovation of the property of plaintiff. The cost of damage has not been stated by PW2 Sh. Anil Chaudhary hence, his evidence is of no resort to the plaintiff.
Since the plaintiff has failed to establish that the defendants have carried out any construction in the property as defendant no. 2 as well as DW2 Smt. Beena Mahor, both have denied that any construction is being carried out in the property of the defendants. The plaintiff has failed to produce any evidence on record to prove that the construction is being carried out in the property of defendants. Plaintiff has herself taken two contrary views that on one hand defendants are not financial sound to complete their CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 8 of 10 building in one go, on the other hand they are frequently carrying out renovation in their building. In my considered opinion that these two contrary views are not possible. The plaintiff has failed to establish that any construction is being carried out by defendants. Accordingly, these issues are decided against the plaintiff.
Issue no. 3: The onus to prove this issue was on the defendants. Defendants by leading evidence as well as examining DW2 Smt. Beena Mahor have been established that no construction has been carried out in the property by the defendants as defendant no. 2 has deposed on oath that his financial condition is not that sound that he can carry out any major construction in his property. It is also the case of the plaintiff that the financial condition of defendant no. 2 is not that sound that he has completed construction of his building at one time in the year 19921993. Once the plaintiff has failed to prove that any construction is being carried out in the property of defendants hence, no cause of action has arisen in favour of plaintiff. This issue is accordingly decided in favour of defendants.
Issue No. 4: The onus to prove this issue was on the defendants. Defendants by examining DW2 Smt. Beena Mahor has been able to prove that the basement has been sold to DW2 Smt. Beena Mahor. It is the claim of plaintiff that due to structural changes carried out by DW2 Smt. Beena Mahor in her CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 9 of 10 property, the damage has been caused to her property. Once the plaintiff has claimed certain reliefs against DW2 Smt. Beena Mahor she becomes a necessary party hence, the suit is bad for nonjoinder of necessary party. This issue is accordingly decided in favour of defendants.
Issue No. 5: The onus to prove this issue was on the defendants. The defendant no. 2 has in his cross examination stated that no money as alleged by him in his affidavit was taken by husband of the plaintiff to settle his course with other neighbours. He is also unaware about the money accepted by the husband of plaintiff as alleged. The defendants have failed to lead any evidence to prove that the intention of plaintiff was to extort money from the defendants. Accordingly, this issue is decided against the defendants Relief: In view of my forgoing discussion, I am of the considered opinion that the plaintiff has miserably failed to prove that she is entitled to recovery of damages to the tune of Rs. 1,86,190/ from the defendants. The present suit of the plaintiff deserves dismissal. Dismissed accordingly. Parties to bear their own costs. The present suit is disposed off. Decree sheet be prepared accordingly, File be consigned to Record Room.
Announced in the open Court (Pooja Talwar)
Today on September 17, 2015 ACJ/CCJ/ARC(SE)
Saket Court, New Delhi
CS No. 384/2013 Raj Upman Vs. Raj Kumari & Anr. Page 10 of 10