Delhi District Court
Shri Chitter Singh vs Sh. Hari Singh on 17 January, 2012
IN THE COURT OF MS. SEEMA MAINI :
ADJ (3) NORTH: TIS HAZARI COURTS: DELHI
In re :
CS No. 143/2010
Unique Case ID No. 02401C0224462006
In the matter of:
Shri Chitter Singh
S/o Sh. Sheo Chand
R/o House No. 342, Village Baidpur
Post Office Nangal Thahran
Delhi-110039. Plaintiff
VERSUS
1. Sh. Hari Singh
S/o Sh. Ami Lal
R/o 341/2, Village Baidpur
Post Office Nangal Thahran
Delhi-110039.
2. Sh. Bal Krishan @ Bal Kishan
S/o Sh. Ami Lal
R/o 341/2, Village Baidpur
Post Office Nangal Thahran
Delhi-110039. Defendants
Date of filing of the suit : 22.03.2006
Date of reservation for judgment : 31.10.2011
Date of judgment : 17.01.2012
SUIT FOR RECOVERY OF RS. 5,53,800/-.
APPEARANCE:
Sh. Diwan Singh Chauhan, counsel for the plaintiff.
Ms. Kamlesh Sabharwal, counsel for the defendant no. 1.
Sh. Anil Kumar, counsel for the defendant no. 2.
JUDGMENT
1. The instant suit has been filed by the plaintiff Chitter Singh against the defendants Hari Singh and Bali Krishan @ Bal Kishan, for CS No. 143/10 Page no. 1 / 14 recovery for a sum of Rs. 5,53,800/-.
2. The brief facts as stated by the plaintiff in the plaint are that that the father of the plaintiff, namely, Sh. Sheo Chand was the owner of the property no. 342, Village Bazidpur, Post Office Nangal Thakran, Delhi, which he inherited from his forefathers. It was stated that in the year 1999, when father of the plaintiff wanted to raise construction over the suit plot for residential purposes of plaintiff, the defendant no.1 filed a false and frivolous suit against the plaintiff and obtained an ex-parte interim injunction order in his favour on the basis of misrepresentation and fraud but ultimately the said suit was dismissed in default on 16.03.2001.
3. It was stated that the plaintiff had purchased building material worth Rs. 2,21,800/- for raising construction over the suit plot but due to the injunction order dated 17.08.1999 obtained by the defendant in the aforesaid false suit filed by defendant no. 1, the plaintiff could not raise construction for a long period till the dismissal of the said suit in default but by that time the building material purchased by the plaintiff was destroyed and thus the plaintiff suffered a loss of Rs. 2,21,800/- towards the cost of the material. It was also stated that the plaintiff had also contested the said false suit filed by the defendant no. 1 and had filed an appeal against the ex-parte interim order passed on the basis of false and frivolous allegations and had spent a sum of Rs. 45,000/- towards litigation expenses and fee of the counsel. Since the suit filed by the defendant no. 1 was dismissed in default, the appeal which had been filed by the plaintiff against the interim order, also become infructuous and was therefore withdrawn by him on 14.05.2002.
4. It was also stated that in the month of June 2002, when the CS No. 143/10 Page no. 2 / 14 father of the plaintiff against tried to raise construction over the suit plot and again purchased building material worth Rs. 1,82,000/- for the said purpose, the defendants alongwith their associates again obstructed the plaintiff and his father and did not allow them to raise construction over the suit property and consequently plaintiff's father was constrained to file a civil suit for permanent injunction against the defendant, which was finally decreed in his favour vide judgment and decree dated 15.03.2005. In the meantime, the building material purchased by the plaintiff and his father, worth Rs. 1,82,000/- also destroyed and the plaintiff again suffered a loss of Rs. 1,82,000/-. However, despite the judgment and the decree dated 15.03.2005, the defendants are not allowing the plaintiff to raise construction over the suit property and the plaintiff has filed an execution petition against the defendants, which was yet pending in the concerned court of Civil Judge.
5. Finally, the plaintiff raised construction over the suit property in the year 2005 but the defendants once again fastened unnecessary litigations upon the plaintiff, due to which the plaintiff has again suffered a loss of Rs. 55,000/- towards litigation expenses including the counsel's fee. It was stated that unfortunately the father of the plaintiff expired on 25.08.2005, without being able to fulfill his dreams of raising construction of a residential house over the suit plot for the plaintiff and his family. Plaintiff also suffered mental pain, agony, inconvenience, loss of precious time in the court in contesting the litigations, for which the defendants are liable to pay damages to the tune of Rs. 50,000/-.
6. It was stated that the plaintiff is entitled to damages to the tune of Rs. 5,53,800/-; towards loss and wastage of building materials worth Rs. 2,21,800/- and Rs. 1,82,000/-, towards expenses incurred on two CS No. 143/10 Page no. 3 / 14 litigations to the tune of Rs. 45,000/- and Rs. 55,000/- each and Rs. 50,000/- towards mental pain, agony and sufferings etc. It was stated that the plaintiff had served a legal notice dated 25.02.2006 upon the defendants, thereby calling upon the defendants to pay a sum of Rs. 5,53,800/- to the plaintiff, but despite service the notice was not complied with and hence the present suit. It was stated that the cause of action in favour of plaintiff and against the defendants firstly arose when the defendants did not allow the plaintiff and his father to raise construction over the suit plot and subsequently on several dates as already detailed in the suit and lastly on service of the legal demand notice, which had not been complied with by the defendants. The suit, for the purposes of valuation and jurisdiction, has been valued at Rs. 5,53,800/-, on which requisite court fee had been paid. The parties to the suit reside and work for gain in Delhi and the entire cause of action has arisen in Delhi and therefore this court has the territorial jurisdiction to adjudicate upon the case in hand. It was prayed that a decree for recovery of Rs. 5,53,800/- be passed in favour of the plaintiff and against the defendants, alongwith future and pendente-lite interest @ 24% per annum, alongwith costs of the suit.
7. Written Statements were filed by defendant no. 1 and 2 separately, wherein the preliminary objections were taken to the effect that the suit of the plaintiff was an abuse of process of law, having been based on concocted and distorted facts and that the suit was bad for mis-joinder and non-joinder of parties. The suit was not maintainable being time barred and as no cause of action has arisen in favour of the plaintiff and against the defendants and that the suit has been filed only to harass the defendants.
CS No. 143/10 Page no. 4 / 148. On merits, it was denied that the suit property was owned by Sheo Chand S/o Nathu Ram. It was stated that entire property was ancestral property and the pedigree chart was also given. It was stated the plot was owned by their ancestors and has been partitioned amongst the rightful heirs long back and the total share which came in the share of plaintiff and another was occupied by them respectively. However, the filing of the civil suit for injunction against the present plaintiff by the defendants was admitted and it was also admitted that the said suit was dismissed in default on 16.03.2001 but it was denied that the ex-parte order had been obtained by misrepresentation and fraud. It was also denied that the plaintiff had purchased the building material worth Rs. 2,21,800/- for raising construction upon the plot but that due to injunction order 17.08.1999 in favour of the defendants, material had been wasted. It was stated that the suit which was filed by the defendant no. 1 was correct but it could not be pursued due to unavoidable reasons. It was denied that any loss of Rs. 2,21,800/- and Rs. 1,82,000/- was sustained by the plaintiff. It was also denied that the plaintiff had to spend unnecessarily Rs. 45,000/- and Rs. 55,000/- on two litigations instituted at the behest of the defendant but it was the suits filed by the defendants were correct and appropriate suits. All the remaining allegations made in the plaint were denied and it was prayed that the suit of the plaintiff, being devoid of merits, be dismissed.
9. Replications to the Written Statements of defendants, was filed by the plaintiff denying the contents of the Written Statements, and reiterated the contents of the plaint.
10. On the pleadings of the parties, on 22.08.2006, the following issues were framed in the instant suit :
CS No. 143/10 Page no. 5 / 141. Whether the suit of the plaintiff is barred by limitation? OPD.
2. Whether the suit of the plaintiff against the defendants is bad for mis-joinder & non-joinder of relevant parties? OPD.
3. Whether the plaintiff is entitled to damages of Rs. 5,53,800/- from the defendants? OPP.
4. Whether the plaintiff is entitled to interest? If so, at what rate? OPP.
5. Relief.
11. To substantiate his case, the Plaintiff entered the witness box as PW1 and tendered his evidence by way of an affidavit, which he proved as Ex. PW1/A. He testified on oath the averments made in the plaint and brought on record the certified copy of the order of the concerned court granting ex-parte interim injunction in favour of defendant no. 1 as Ex. PW 1/1, the certified copy of the order vide which the appeal preferred against the ex-parte injunction order, being withdrawn by the plaintiff as Ex. PW1/2, the bill showing the purchase of building material worth Rs. 2,21,800/- as Ex. PW 1/3, the certified copy of the judgment / decree dated 15.03.2005 vide which the suit for permanent injunction filed by the plaintiff was decreed as Ex. PW1/4, the bill showing the purchase of building material worth Rs. 1,82,000/- as Ex. PW 1/5, the copies of the notice and its reply as Ex. PW 1/6 to PW 1/8 respectively.
12. The plaintiff also examined Sh. Mahender Singh S/o Pounhkar Singh as PW 2, who deposed on an affidavit which he proved as Ex. PW 2/A and corroborated the assertions of the plaintiff made in the plaint.
13. The plaintiff also examined Sh. Kartar Singh S/o Tej Singh as PW 3, who deposed on an affidavit which he proved as Ex. PW 3/A and CS No. 143/10 Page no. 6 / 14 corroborated the assertions of the plaintiff made in the plaint.
14. After close of PE, defendant no. 1 Hari Singh entered the witness box as DW1 and tendered his evidence by way of an affidavit, which he proved as Ex. DW1/A and testified on oath the averments made in the Written Statement.
15. Defendant no. 2 Bal Kishan entered the witness box as D2W1 and tendered his evidence by way of an affidavit, which he proved as Ex. D2W1/A and testified on oath the averments made in the Written Statement. He also brought on record the copy of the reply alongwith postal receipts as Ex. DW 1/1 and Ex. DW 2/2 respectively.
16. I have heard Sh. Diwan Singh Chauhan, counsel for the plaintiff and Ms. Kamlesh Sabharwal, counsel for the defendant no. 1, Sh. Amit Kumar, counsel for defendant no. 2, perused the record, scrutinized the evidence adduced and gone through the relevant case law and my issue-wise finding is as under :
ISSUE No. 1 :-
Whether the suit of the plaintiff is barred by limitation? OPD.
17. The onus to prove the said issue was upon the defendants and to discharge the same, the plaintiff and his witnesses were subjected to a grilling cross examination to establish that the relief which was being claimed by the plaintiff was barred by limitation.
18. From the factual matrix of the case, prayer clause of the plaint and specifically para no. 8 of the plaint, it is amply clear that the damages CS No. 143/10 Page no. 7 / 14 which are being claimed by the plaintiff, are on the basis of, building material purchased for Rs. 2,21,800/- and Rs. 1,82,000/-, towards litigation expenses to the tune of Rs. 45,000/- and Rs. 55,000/- and towards damages for mental pain and agony etc amounting to Rs. 50,000/-. As per the plaintiff, father of the plaintiff namely Sh. Sheo Chand had wanted to raise construction on the suit plot in the year 1999, for which he had purchased the building material for Rs. 2,21,800/- but because of the filing of the suit by defendant no. 1 against Sheo Chand, father of the plaintiff, and grant of ex-parte injunction order, the plaintiff's father was unable to use the building material and raise construction, till the suit was ultimately dismissed in default on 16.03.2001.
19. The litigation expenses of Rs. 45,000/-, which have been claimed, were alleged to have been spent for contesting the suit filed by the defendant no. 1 and for filing of the appeal against the ex-parte injunction order, which ultimately had to be withdrawn on 14.05.2002, having become infructuous due to the dismissal of the suit of the defendant in default. Therefore, so far as the claim of the plaintiff under these two heads is concerned, the cause of action for filing of the suit for loss / wastage of building material arose in 1999 or it again arose on the dismissal of the suit on 16.03.2001 or when the appeal was withdrawn on 14.05.2002. However, the instant suit has been filed on 22.03.2006 and therefore is obviously beyond the period of limitation of three years. Therefore the relief of damages of Rs. 2,21,800/- and Rs. 45,000/-, allegedly spent towards the purchase of building material and the litigation expenses by the plaintiff, is time barred.
20. As regards the purchase of building material, for Rs. 1,82,000/- is concerned, it was allegedly purchased in June, 2002 but due to the CS No. 143/10 Page no. 8 / 14 alleged obstruction in the construction by the defendants, a caue for injunction was filed by the plaintiff's father against the defendants, which was ultimately decreed in his favour vide the judgment dated 15.03.2005. However, after the said decree, the building material which had been purchased in 2002 stood wasted, giving rise to a fresh cause of action and hence the instant suit which has been filed on 22.03.2006 for claim of damages of Rs. 1,82,000/- and Rs. 55,000/- towards litigation expenses and Rs. 50,000/- for non-pecuniary damages, is within limitation.
Issue no. 1 is accordingly decided partly in favour of the defendants and partly in favour of the plaintiff to the extent that claim of plaintiff for Rs. 1,82,000/-, Rs. 55,000/- and Rs. 50,000/- and thus totalling Rs. 2,87,000/- is within limitation.
ISSUE No. 2 :-
Whether the suit of the plaintiff against the defendants is bad for mis-joinder & non-joinder of relevant parties? OPD.
21. The onus to prove the said issue was upon the defendants. From the bare reading of the plaint, the testimony of the plaintiff as PW 1 as well as the admissions made by him in his cross examination, it is clear that the suit property bearing no. 342, Bajidpur, PO Nangal Thakran Delhi, was owned by Sh. Sheo Chand, father of the plaintiff. The property was an ancestral property, admittedly, Sh. Sheo Chand having inherited the same from his forefathers. It is the admitted case of the plaintiff that in the year 1999 and subsequently in the year 2002, it was his father who wanted to raise construction over the said plot and he had so started construction but obstruction were raised by the defendants allegedly, leading to filing of cases initially by the defendant no.1 against Sheo Chand and subsequently by Shoe Chand against the defendants. Admittedly, by the CS No. 143/10 Page no. 9 / 14 plaintiff the building materials were purchased by his father Sheo Chand for use of the same in the construction, which he wanted to raise on the suit plot. It was in June, 2002 when once again alleged obstructions were raised by the defendants, and it was Sheo Chand, father of the plaintiff who filed the suit for injunction against the defendants and it was Sheo Chand in whose favour the said suit was decreed on 15.03.2005.
22. In his cross examination conducted on 08.02.2007, PW 1 has categorically admitted that he did not have any right to raise any construction on the suit property nor did he ever try to raise any construction. He admitted that he had not purchased any building material. He did not raise any construction on the suit plot till after the death of his father on 25.08.2005. He admitted that all the building material was purchased by his father and that he had made wrong assertion in para no. 4 that he had purchased the building material. In his cross examination conducted on 06.08.2007, PW 1 stated that to help his father in raising construction on the suit plot, he had given his father Rs. 1,00,000/- in cash, after taking loan from one Sh. Ranbir Singh, but was unable to establish the factum of so having taken a loan and having given the loan amount to his father, by placing on record any concrete evidence. However, any help which the plaintiff has extended to his father would remain a transaction between him and his father, which would not have any bearing upon the recovery, if any, to be made from the defendants. From the admissions, made by the plaintiff in his cross examination, it is therefore established that losses, if any, either towards the purchase of building material or upon the litigation, which was instituted because of the alleged acts of the defendants, were sustained by the father of the plaintiff and not by the plaintiff himself. Therefore, the suit for damages, if any, could have been filed by the father of the plaintiff, namely Sh. Sheo Chand.
CS No. 143/10 Page no. 10 / 1423. It was the admitted case of the plaintiff as well as the defendants that Sheo Chand expired in August, 2005. The cause of action for filing of the instant suit, if any, had arisen in favour of Sheo Chand but after his death in August, 2005 the instant suit could have been filed by all his LRs. Admittedly, by the plaintiff the plot in question was in the name of his father, who had died intestate. There was no document / Will executed by his father bequeathing the suit property in favour of the plaintiff. PW 1 / plaintiff has admitted in his cross examination conducted on 06.08.2007 that the suit property belonged to whole of his family and that his father was survived by his wife, two daughters and three sons. He volunteered that his brothers and sisters had given the property to him but admittedly he had not placed on record any document to show that right of his brothers and sisters in the suit property had been relinquished by them in favour of the plaintiff, so as to enable him to file the instant suit in March, 2006 in his individual capacity. In his cross examination of even date, the plaintiff has emphasized that his father wanted to build the house for him only, but no such document has been placed on record which would so reflect the intention of the Sheo Chand, father of the plaintiff. In these circumstances, the instant suit which has been filed by the plaintiff in his individual capacity, is bad for non-joinder as well as mis-joinder of the parties.
24. No doubt that the case of the plaintiff cannot be defeated only on the ground of non-joinder and mis-joinder of parties, but in the instant case the objections regarding non-joinder were taken by the defendants at the outset in the Written Statement, which was filed by the defendants, but the plaintiff has chosen not to rectify the suit, with the result that the suit which has been filed by the plaintiff in respect of the claim towards damages, the cause of action for which, if any, had arisen in favour of his CS No. 143/10 Page no. 11 / 14 father, is bad for non-joinder and mis-joinder of parties.
Accordingly, issue no. 2 is decided in favour of the defendants and against the plaintiff.
ISSUE No. 3 & 4 :-
Whether the plaintiff is entitled to damages of Rs. 5,53,800/- from the defendants? OPP.
& Whether the plaintiff is entitled to interest? If so, at what rate? OPP.
25. The onus to prove these issues was upon the plaintiff. In my discussion in issue no. 1, it has already been held that claim of the plaintiff towards damages of Rs. 2,21,800/- for wastage of building material and Rs. 45,000/-, allegedly spent towards the litigation expenses by the plaintiff, is time barred. It has also been held in issue no. 2 that cause of action, if any for filing of the instant suit for damages arose only in favour of Shoe Chand, father of the plaintiff but after his death in August, 2005, the instant suit could only have been filed by all his LRs and not only by the plaintiff in his individual capacity. The remaining claims which have been made, are towards purchase of building material for Rs. 1,82,000/- and towards litigation expenses for filing of the suit by Sheo Chand against the defendant, which was decreed in his favour on 15.03.2005 and towards the non pecuniary damages against mental pain and agony etc.
26. The property which was to be constructed by Sheo Chand, was owned by him and admittedly the building material, if any had been purchased by Sheo Chand. The purchase of building material worth Rs.
CS No. 143/10 Page no. 12 / 141,82,000/- could not be established at all or that the said building material worth Rs. 1,82,000/- which was so purchased by Sheo Chand, stood waste. Litigation expenses, if any, were incurred by Sheo Chand and not by the plaintiff and in any case the suit which had been filed by Sheo Chand and was decreed in his favour, as per the certified copies of the suit, which has been filed on record, was decreed in his favour alongwith the costs of the suit, which include the litigation expenses. Therefore, the litigation expenses, if any, which were incurred by Sheo Chand, had already been granted to him vide the decree dated 15.03.2005, which was passed in his favour.
27. Mental pain and agony, if any, would remain the personal losses and claim for which could only be granted to Sheo Chand but cannot be granted to any of his LRs, after his death. Therefore, I am of the opinion that the plaintiff is not entitled to any damages, either to the tune of Rs. 5,53,800/- or even to the tune of Rs. 2,87,000/-, as no losses were ever sustained by him. Losses, if any sustained by Sheo Chand, can only be claimed by all the LRs of Sheo Chand and the instant suit having been filed by the plaintiff, in his individual capacity, is not maintainable.
28. Since it has already been held that the plaintiff is not entitled to recover any amount towards damages from the defendants, no question of any interest thereon arises.
Accordingly, both these issues are decided in favour of the defendants and against the plaintiff.
RELIEF :-
29. In view of my discussion upon issue no. 1 to 4, the plaintiff is not entitled to recover any amount towards damages from the defendants, CS No. 143/10 Page no. 13 / 14 and accordingly the suit of the plaintiff is dismissed. No orders as to costs.
Decree Sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open court
on 17.01.2012 (SEEMA MAINI)
ADJ-3 (NORTH):DELHI
CS No. 143/10 Page no. 14 / 14
CS No. 143/10
17.01.2012.
Present : Parties in person.
Vide my separate judgment of the even date announced in the open court, the suit of the plaintiff is dismissed. No orders as to costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(SEEMA MAINI) ADJ-3 (NORTH):DELHI CS No. 143/10 Page no. 15 / 14