Delhi District Court
Senior Civil Judge-Cum-Rent ... vs Sh. Raj Kumar Sood on 31 January, 2017
31.01.2017 1 New Suit No. 58666/16
(67/12)
IN THE COURT OF MS. KIRAN GUPTA
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER,
NORTH WEST DISTRICT, ROHINI COURTS, DELHI
Smt. Jagtamba Devi
W/o Late Sh. S.P. Vyasa
R/o B-23,
Dhauli Dhar Group Housing Society,
Himkunj, Plot no. 8, Sector 14,
Rohini, New Delhi-85 ...Plaintiff
Versus
1. Sh. Raj Kumar Sood,
R/o B-27,
Dhauli Dhar Group Housing Society,
Himkunj, Plot no. 8, Sector 14,
Rohini, New Delhi-85
2. The President/Secretary,
Dhauli Dhar Group Housing Society,
Himkunj, Plot no. 8, Sector 14,
Rohini, New Delhi-85 ...Defendants
Date of institution : 23.02.2012
Date of conclusion
of final arguments : 28.01.2017
Date of judgment : 31.01.2017
Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 1 of 13
31.01.2017 2 New Suit No. 58666/16
(67/12)
JUDGMENT
1. Present suit is for permanent and mandatory injunction alongwith the prayer for recovery of damages.
2. Case of plaintiff is that she is living in apartment bearing no. B-23 Dhaula Dhar Group Housing Society (DDGHS), Himkunj Plot 8, Sector 14, Rohini, Delhi-85 (hereinafter referred as suit property). It is alleged that due to the seepage on account of negligence and poor maintenance of flat no. B-27 DDGHS, all the rooms of the suit property have been damaged. Despite her repeated requests, no corrective steps have been taken by defendant no. 1. It is alleged that due to the seepage, there is danger of electrocution and further her flat has become breeding ground of mosquitoes. Even the structure of the suit property has weakened. It is further stated that the fumes coming from the chemicals used by defendant no. 1 in constructing his bathroom has seeped down alongwith water and has made her premises almost inhabitable.
2.1 It is stated that in September 2008, the in house electrician of society inspected the suit property and had found that due to the seepage, current is passing through the switches and that electrocution Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 2 of 13 31.01.2017 3 New Suit No. 58666/16 (67/12) had become a possible danger. Her son wrote a letter to defendant no. 2, who sent a team alongwith defendant no. 1 to inspect the suit property in January 2009 to resolve the situation, however, no steps have been taken by defendant no. 1 to stop the seepage nor any action has been taken by defendant no. 2 against defendant no. 1. She wrote various letters to defendant no. 2, however defendants have ignored her requests. Legal notice dated 28.11.2011 was sent to the defendants. Defendant no. 1 replied the same, vide reply dated 12.12.2011. Defendant no. 2 also replied the same. It is alleged that due to the continuous seepage, the entire suit property has been damaged. It is defendant no. 1 who at the time of additional construction did not take any precautionary measure which has resulted in the seepage and has also failed to rectify the same.
2.2 It is prayed that decree for damages for the sum of Rs. 2 lacs be passed in her favor as compensation for harassment and mental agony suffered by her. It is further prayed that defendants be restrained from not using the portion of the property due to which damage as well as leakage is being caused to the suit property. It is further prayed that defendants be directed to repair the suit premises as well as the portion of property from which leakage is being caused.
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3. In the written statement filed on behalf of defendant no. 1, he has taken the preliminary objection that suit is bad for non-joinder and mis-joinder of necessary parties and that the suit has not been valued properly for the purposes of court fee and jurisdiction. It is stated that no seepage in the suit premises has resulted due to his act or omission. The seepage is due to leakage in bathroom of flat no. 26, against whom specific letter was issued by the secretary of the society on the complaint of the plaintiff and her son. It is stated that despite this, plaintiff has not impleaded the owner of flat no. 26 as party to the suit.
3.1 It is stated that in the building in which he as well as plaintiff are living is around 25-30 years old. He is also facing the same problem of seepage and leakage which is due to the reason of old age of GI pipes fitted in the building at the time of the construction. It is stated that defendant no. 2 is taking maintenance charges from the residents, hence it is the duty of defendant no. 2 to maintain the premises. The seepage in the premises of plaintiff has not occurred due to any of the negligence on his part but due to the old GI pipes of the building. It is stated that the main cause of seepage and leakage was the bathroom pipes of flat no. 26. He with the cooperation of owner of flat no. 26, had got changed the complete pipeline in the bathroom of flat no. 26 to resolve the dispute. It Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 4 of 13 31.01.2017 5 New Suit No. 58666/16 (67/12) is stated that now there is no seepage and present suit has been filed by the plaintiff only to extort money from him.
4. In the written statement filed on behalf of defendant no. 2, it has taken the preliminary objection that the suit is without any cause of action. It is stated that plaintiff is not living alone in the premises as claimed. Most of the contents of the plaint have not been replied for want of knowledge. It is stated that society is responsible only for maintenance of common services and not for the repairs in the interiors of the flats.
5. No replication has been filed by the plaintiff to the written statement of either of the defendants.
6. On the basis of pleadings following issues were settled vide order dated 18.05.2013:
1. Whether suit is without any cause of action? OPD1
2. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD1
3. Whether plaintiff has concealed material facts, if so to what effect? OPD1 Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 5 of 13 31.01.2017 6 New Suit No. 58666/16 (67/12)
4. Whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP
5. Whether plaintiff is entitled for damages as prayed for?
OPP
6. Whether plaintiff is entitled for decree of mandatory injunction as prayed for? OPP
7. Relief
7. During pendency of the trial, defendant no. 2 stopped appearing and was proceeded ex-parte vide order dated 02.04.2014.
8. Plaintiff in order to prove her case has examined herself as PW1. She has tendered her evidence by way of affidavit Ex.PW1/A and has relied upon following documents:
(1) Letter dated 25.04.2009 is Ex.PW1/1
(2) Letter dated 04.01.2011 is Ex.PW1/2
(3) Letter dated 28.05.2011 is Ex.PW1/3
(4) Letter dated 30.05.2011 is Ex.PW1/4
(5) Legal notice is Ex.PW1/5
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(6) Letter dated 12.12.2011 is Ex.PW1/6
(7) Letter issued by defendant no. 2 is Ex.PW1/7
(8) Photographs are Ex.PW1/9
8.1 Plaintiff has also examined Sh. Vikas Kumar as PW2, M.P.
Roy as PW3 and Vipin Shukla as PW4. All these witnesses have tendered their evidence by way of affidavit Ex.PW2/A, Ex.PW3/A and Ex.PW4/A, respectively.
9. Defendant no. 1 in order to prove his case has examined himself as DW1 and has tendered his evidence by way of affidavit Ex.DW1/A.
10. Heard counsels for the parties and perused the complete record file. My issuewise findings are as follows:
Issue no. 2 Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD1
11. The onus to prove this issue is on defendant no. 1. Defendant Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 7 of 13 31.01.2017 8 New Suit No. 58666/16 (67/12) no. 1 has merely stated that the suit has not been valued properly for the purposes of court fee and jurisdiction. Plaintiff has sought damages for the amount of Rs. 2 lacs and has further prayed the relief of mandatory and permanent injunction that the defendant no. 1 be restrained from using the portion from where the leakage is caused and also to carry out the repair work in her flat which has been damaged due to the leakage from his flat. Plaintiff has affixed the court fee of Rs. 4,300/- on the reliefs claimed by her. She has filed sufficient court fees for the reliefs sought by her. No evidence has been led by defendant no. 1 as to how the suit has not been valued properly for the purposes court fee and jurisdiction. This issue is accordingly decided in favor of plaintiff and against defendant no. 1.
Now coming to the remaining issues.
1. Whether suit is without cause of action? OPD1
3. Whether plaintiff has concealed material facts, if so to what effect? OPD1
4. Whether plaintiff is entitled for decree of permanent injunction as prayed for? OPP
5. Whether plaintiff is entitled for damages as prayed for?OPP Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 8 of 13 31.01.2017 9 New Suit No. 58666/16 (67/12)
6. Whether plaintiff is entitled for decree of mandatory injunction as prayed for? OPP
12. These issues are taken together as they are interconnected. The onus to prove issue no. 1 and 3 is on defendant no. 1, while onus to prove issue no. 4 to 6 is on plaintiff. The case of plaintiff is that the leakage has been caused due to the seepage from the flat of defendant no. 1, while plea of defendant no. 1 is that the seepage has been caused due to the old GI pipes in the building which is around 25-30 years old.
13. PW1 during her cross-examination deposed that she has made a complaint to the society regarding leakage of water from the roof against defendant no. 1. She admitted that in the complaint Ex.PW1/1, she has not specifically named defendant no. 1. She volunteered that at the time of making of the said complaint, it was mentioned about leakage of water from four houses, hence, name of defendant no. 1 was not mentioned.
14. PW1 during her cross-examination admitted that she has no technical knowledge to ascertain as to from which house the water was Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 9 of 13 31.01.2017 10 New Suit No. 58666/16 (67/12) leaking, due to which her flat has been damaged. She denied the suggestion that on her complaint Ex.PW1/1, society has given notice to Mr. A.S. Dogra, owner of flat no. 26 about the leakage of water. She deposed that she does not know if defendant no. 1 has got repaired the house of Mr. A.S. Dogra with a view to stop damage in her house and to maintain harmony among neighbors.
15. PW3 and PW4 in their affidavits Ex.PW3/A and Ex.PW4/A have stated in para no. 3 that plaintiff is under huge mental agony and life threatening situation due to the negligence and poor maintenance of the flat bearing no. B-23 which is above the flat of plaintiff. The said paragraph is reiterated in the affidavit of PW2 also. Though, it has been argued by the counsel for plaintiff that same is a typographical mistake, however, no steps were taken by the plaintiff for the correction of the same during the pendency of the trial. In fact, PW3 and PW4 during their cross-examination admitted the suggestion that in para no. 3 of their affidavits they have mentioned that seepage is due to negligence and poor maintenance of flat no. B-23. They did not volunteer at that stage that the same is a typographical mistake.
16. Plaintiff has relied upon certain letters which she has filed Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 10 of 13 31.01.2017 11 New Suit No. 58666/16 (67/12) before the society with respect to the complaint against defendant no. 1. The said letters are Ex.PW1/1 to Ex.PW1/4. In none of these letters, it is stated that the seepage is due to the leakage in flat no. 27. There is one letter Ex.PW1/2, in which flat no. 22, 23, 19 and 27, have been mentioned. PW1 during her cross-examination was specifically asked that in none of her complaints/letters she has leveled allegations regarding seepage against defendant no. 1 to which she admitted that she has not specifically named defendant no. 1 in her letter Ex.PW1/1. She herself volunteered that at the time of making of the said complaint she had mentioned about the leakage of water from four houses, hence, name of defendant no. 1 was not mentioned. Thus, plaintiff herself was not clear about the actual cause of damage to the suit property.
17. Plaintiff has not examined any independent witness i.e. plumber, contractor or architect to prove that the seepage is being caused due to some leakage in the flat no. 27 which belongs to defendant no. 1. Plaintiff has examined PW2, PW3 and PW4 to prove that the seepage and damage to the suit property has been caused due to the leakage in flat no. B-27. PW2 has not been cross examined by the defendant no. 1. PW3 and PW4 during their cross-examination admitted that they have no qualification to say about the source and cause of seepage in the suit Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 11 of 13 31.01.2017 12 New Suit No. 58666/16 (67/12) premises. They admitted that the address of defendant is B-27. They deposed that they do not know whether in the letter dated 25.04.2009 Ex.PW1/1, it is stated that seepage is caused due to flat no. B-27. They deposed that seepage is due to B-27 as it is located just above the suit property as seepage is all over the roof and side walls. They deposed that the same might be due to the defect in the pipes or seepage through the flooring. They admitted that the entire building is around 40 years old.
18. From the testimony of these witnesses, it cannot be said that the seepage has been caused due to leakage in flat no. B-27. Plaintiff has not specified the exact place from where the leakage is caused from flat no. B-27. In fact, plaintiff and her witnesses have categorically admitted that the building is 40 years old. Though, plaintiff has avered that the in- house electrician after inspection of the suit property has stated that the property is under danger of electrocution, however, she has not examined the said electrician or any other electrician also. Merely because the flat of defendant no. 1 is above the flat of plaintiff, does not leads to the inference that the seepage is due to the leakage in the flat of defendant no. 1. Plaintiff has failed to prove that the seepage in her flat is due to the leakage in the flat of defendant no. 1. She has also not led any evidence to show that she has incurred the damages to the tune of Rs. 2 lacs. She Jagtamba Devi Vs. Raj Kumar Sood & anr. Page 12 of 13 31.01.2017 13 New Suit No. 58666/16 (67/12) has failed to discharge the onus laid upon her. In the absence of any cogent evidence on behalf of plaintiff, all these issues are decided against plaintiff and in favor of defendant no. 1.
Relief
19. In view of the above discussion, suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (KIRAN GUPTA)
court on 31.01.2017 SCJ-RC, NORTH WEST DISTRICT,
ROHINI COURTS, DELHI
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