Himachal Pradesh High Court
____________________________________________________ vs Dila Ram Verma on 30 June, 2015
Author: Dharam Chand Chaudhary
Bench: Dharam Chand Chaudhary
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.131 of 2004.
Judgment reserved on: 24th June, 2015.
.
Date of Decision: 30th June, 2015.
____________________________________________________
Mangat Ram ..Appellant.
Versus
Dila Ram Verma ..Respondent.
Coram
Hon'ble Mr. Justice Dharam Chand Chaudhary, J.
Whether approved for reporting1?Yes.
For the appellant: Mr. Bhupender Gupta, Senior Advocate, with Mr. Janesh Gupta, Advocate.
For the respondent:
Mr. Sanjeev Kuthiala, Advocate.
____________________________________________________ Dharam Chand Chaudhary, J.
Plaintiff is in second appeal before this Court. He is aggrieved by the judgment and decree dated 27th December, 2003, passed by learned District Judge, Shimla, in Civil Appeal No.54-S/13 of Whether reporters of the Local papers are allowed to see the judgment? Yes.::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -2-
2001, whereby the appeal has been dismissed and the judgment and decree passed by learned trial Court on 2nd June, 2001, in Case No.1/1 of 1991, .
affirmed.
2. The plaintiff and defendant are neighbourers. The plot of the plaintiff measuring 4 biswas, bearing Khasra No.772/451/1, situate in village Pagog, Tehsil and District Shimla, is immediately below that of defendant. The plaintiff had acquired the land hereinabove by way of sale, vide sale deed dated 7th November, 1989, Ext.PW-1/A. The defendant had started raising construction of his house in the year 1989 well before the plaintiff purchased the plot.
3. The complaint is that the defendant raised the construction of retaining wall with boulders, stones and mud. While raising the construction of his house, he used to stack the construction material on the retaining wall. On account of load on the wall, ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -3- the same started sliding-down. Many cracks also developed in the retaining wall. As a result thereof, stones became loose at many places. The .
defendant also filled the gap in between the retaining wall and his plot with excavated material and debris. The plaintiff on seeing all this, apprised on so may occasions the defendant about such acts of omission attributed to him including issuance of the notice, but of no avail with the result that the retaining wall collapsed on 7th January, 1991 and the entire debris including stones and excavated material used for filling the gap slided-down and came on the building of the plaintiff thereby damage was caused to his building under construction. He got such damage assessed, which came to `94,000/-. He suffered such damage on account of the negligence attributed to defendant.
He requested the defendant to make the loss, so caused to him, good, but of no avail. It is also ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -4- claimed that the defendant has been raising construction unauthorisedly without obtaining proper demarcation or sanction from the competent .
authority, hence the suit for permanent prohibitory and mandatory injunction restraining thereby him from raising further construction of his house and throwing debris, stones or excavated material on the plot of the plaintiff and to remove the debris, stones or excavated material accumulated on his plot on account of collapse of the retaining wall with further direction to reconstruct the retaining wall. A decree for recovery of `94,000/- against the defendant has also been sought to be passed.
4. The defendant, when put to notice, has contested the suit. In preliminary, he has raised the objections qua the maintainability of the suit, suppression of material facts, cause of action and estoppel. On merits, it is submitted that his plot, measuring 5 biswas bearing Khasra No.784/451 ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -5- situate in Kufta-Dhar, is above the plot of the plaintiff.
The plaintiff while starting construction of his house, dug and excavated the soil just below the retaining .
wall, the defendant raised to support his plot. He had also constructed a pucca tank over his plot. On account of excavation and digging of soil just below the retaining wall, the wall and pucca tank collapsed. He had already constructed the house, retaining wall and also tank when the plaintiff started digging work of his plot to raise the construction over the retaining wall of the house of the defendant. It is denied that the retaining wall was constructed by boulders with mud. It is pointed out that he constructed the retaining wall under the supervision and guidance of an expert. On account of collapse of his retaining wall and tank, he allegedly suffered with a loss of more than `50,000/-. He, therefore, has filed a suit against the plaintiff for recovery of the amount in question in the Court.
::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -6-5. In replication, the plaintiff has denied the contents of preliminary objections being wrong and on merits, has reiterated his case as set out in the .
plaint.
6. On the pleadings of the parties, the following issues were framed:
1) Whether the plaintiff is entitled to prohibitory injunction, as prayed for? OPP.
2) Whether the plaintiff is entitled to mandatory injunction, as prayed for? OPP.
3) Whether the plaintiff is entitled to the alternative relief for the recovery of `94,000/-? OPP.
4) Whether the plaintiff is estopped from filing the suit due to his own act, deeds and conducts? OPD.
5) Whether the plaintiff has suppressed material facts? OPD.
6) Relief.
7. Learned trial Court put the parties on both sides to trial on the issues so framed. On the ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -7- conclusion of the trial and on appreciation of the oral as well as documentary evidence produced by the parties on both sides, the trial Court neither held .
the plaintiff entitled to permanent prohibitory and mandatory injunction nor for the recovery of `94,000/- against the defendant. The suit was, therefore, dismissed.
8. In appeal, learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court.
9. The legality and validity of the impugned judgment has been questioned on the grounds inter alia that proper issues arising out of the pleadings of the parties have not been framed and by clubbing issues No.1, 2 and 3 for determination together the trial Court has committed a grave error. The evidence on record has been misread and mis-
appreciated. The admission of the defendant/ respondent that he has not obtained sanction from ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -8- H.P. Town and Country Planning Department required for raising construction, has been ignored. In the absence of the sanction to raise construction, .
the defendant by way of decree of permanent prohibitory injunction should have been restrained from raising construction. The ingredients required for grant of permanent prohibitory injunction have neither been discussed nor taken into consideration and the suit to the contrary was determined in utter disregard of the evidence available on record. The findings that the retaining wall slided-down on account of non-providing support by the plaintiff, are not legally sustainable, as in view of the vacant space between the two properties no support could have been provided by the plaintiff to the retaining wall in question. The testimony of PW-7 has been misconstrued and the documents Exts.PW-7/A to PW7/D, he proved, have also been erroneously ignored. Both Courts below have committed a grave ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP -9- error in relying upon the evidence of DW-1 and DW-
2, who were not the experts. The Courts below allegedly failed to understand the true import of .
term 'negligence'. The findings that the plaintiff has not got the plan approved from the Municipal Corporation, are not only erroneous but perverse because the area where the property is situated did not fall within the jurisdiction of Municipal Corporation, Shimla.
10. The appeal has been admitted on the following substantial question of law:
Whether both the Courts below without discussing the necessary ingredients for grant of prohibitory injunction took an essentially wrong approach in the matter in denying the relief to the plaintiff-
appellant when it was duly proved that the construction of the defendant was not in accordance with any approved plan or ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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sanction from the HP Town and Country Planning vis-à-vis the pleadings and oral and documentary evidence which .
entitled the plaintiff for not only permanent injunction but also mandatory injunction?
11. Mr. Bhupender Gupta, learned Senior Advocate, while addressing arguments on behalf of the appellant-plaintiff, has drawn the attention of this Court to the evidence having come on record, particularly, by way of testimony of expert witnesses PW-7 Surjit Singh and DW-3 R.B. Saxena and has urged that the evidence so produced has not been appreciated by learned trial Court and also lower appellate Court. According to Mr. Gupta, the findings as in para-19 of the trial Court's judgment and para-15 in that of learned lower appellate Court qua the cause of collapse of retaining wall, are ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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absolutely wrong and the result of misappreciation and misreading of evidence available on record.
12. Mr. Sanjeev Kuthiala, Advocate, learned .
Counsel, has come forward with the version that the respondent-defendant after acquiring the plot in the year 1984-85 raised construction thereon in the year 1989. It is the appellant-plaintiff, who acquired the plot in the year 1990 and started construction work in an unscientific manner and made the cutting of earth to erect pillars without making a provision of breast-wall and as a result thereof the retaining wall and septic tank constructed by the defendant slided-down and huge loss caused to him.
Therefore, according to Mr. Kuthiala, the defendant never evaded any right of the plaintiff and it is rather the latter, who on account of his illegal act caused loss to the property of the former. The defendant, therefore, had to file a suit for recovery of the loss so ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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caused to him by the plaintiff, which is pending disposal in the Court.
13. Learned Counsel on both sides have .
failed to address to this Court on the substantial question of law framed at the time of admission of the appeal and highlighted the factual aspect of the matter more during the course of arguments.
Any how, the complaint is that the failure of both Courts below not to take into consideration the necessary ingredients of permanent prohibitory injunction and having dismissed the suit without taking such ingredients into consideration has vitiated the judgment and decree under challenge.
14. In order to decide the legal question hereinabove, it is desirable to make a reference here to the provisions contained under Section 38 of the Specific Relief Act. The provisions contained under the Section ibid deal with perpetual/permanent prohibitory injunction. A perpetual injunction can be ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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granted to prevent the breach of an obligation and when there is invasion of the plaintiff's right to enjoy any property at the hands of the defendant. The .
perpetual injunction can be granted in those cases where the defendant was trustee of the property and invades the rights of enjoyment of such property by the plaintiff, where the damage caused or likely to be caused by such invasion cannot be measured in terms of money nor payment of compensation in terms of money would afford adequate relief to the plaintiff and where the grant of such injunction is necessary to prevent the multiplicity of litigation.
15. The perpetual injunction is a discretionary and equitable relief. A person who claims equity must do equity. A person, who is not fair, cannot claim equity. It is in the light of the above legal parameters, the plaintiff's claim for the grant of decree of perpetual injunction has to be examined and determined.
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16. There is no dispute so as to the defendant's acquired the plot well in time as compared to the plaintiff. It is also established not .
only from the own testimony of the plaintiff while in the witness-box as PW-11, but also from that of PW-6 Sohan Lal that in the year 1990-91 when the plaintiff acquired his plot and started construction of his house thereon the defendant has already constructed the retaining wall, septic tank and ground floor of his house. True it is that as per the plaintiff's claim, the defendant had raised construction of retaining wall with boulders and mud and failed to construct the same by using cement despite requests made in this regard. This part of the plaintiff's case seems to be not correct because he had acquired the plot at such a time when half of the retaining wall was already constructed, whereas as per that of defendant, the retaining wall and ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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septic tank were already constructed well before the plaintiff acquired his plot.
17. The further grouse of the plaintiff that the .
defendant, during the course of raising construction, had stacked the construction material over the retaining wall, which was constructed with boulders and mud, as a result thereof the retaining wall gave way due to load thereon and collapsed also seems to be neither plausible nor reasonable for the reason that over the platform of a retaining wall construction material can not be stacked to such an extent that the same collapsed. No doubt, the plaintiff and also PW-6 Sohan Lal and for that matter PW-9 Gulaba Ram have said so, however, such evidence cannot be believed as a gospel truth, particularly when the defendant has denied the same to be wrong and as regards DW-2 Ajit Ram, the mason, the defendant engaged to raise the construction of retaining wall, he has categorically ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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said that the retaining wall was of pucca masonry raised on hard strata after filling by gatka in the ratio of 1:5 and septic tank was also of pucca masonry.
.
Therefore, the evidence qua this aspect of the matter is equally balanced. The plaintiff, no doubt, has examined 11 witnesses including himself, however, in sundry and many of them are the witnesses to prove the alleged damage caused to the house due to collapse of the retaining wall. The retaining wall though collapsed, however, not on account of any omission or negligence which can be attributed to the defendant and rather on account of unscientific cutting of the earth made by the plaintiff to dig pits for erection of pillars of his house over his plot including the space below the foundation of retaining wall constructed by the defendant. As a matter of fact, the plaintiff was required to have raised the construction of a breast-
wall before making digging of earth below the ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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retaining wall of the defendant. He, however, failed to do so and as a result thereof the retaining wall which was of pucca-masonry gave way and .
collapsed. The stones and debris, no doubt, have fallen on the plot of the plaintiff, however, it is he who cleared the stones and debris is difficult to believe because as per his own admission, the defendant had reconstructed the retaining wall and also the septic tank obviously by using the same material, particularly stones. Otherwise also, when it is the plaintiff, the wrong-doer even if he cleared the debris cannot be heard to have any complaint in this regard.
18. True it is that the defendant had not obtained approval from the Town and Country Planning Department to raise the construction of his house, however, for that matter the plaintiff had also not obtained any approval from such Department.
He, while in the witness-box, has himself stated that ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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the Town and Country Planning Act is not applicable to the area where the properties in question are situated, however, corrected himself while stating in .
the same breath that the Act is applicable in that area. Anyhow, when he himself has not obtained the approval from the Town and Country Planning Department, how he could have sought such equitable relief against the defendant. True it is that injunction with regard to a construction being raised in violation of the statutory rules and bye-laws can be granted, however, at this stage and with the afflux of time when we do not know as to what is the exact position on the spot, the decree for permanent prohibitory injunction cannot otherwise be also granted. As a matter of fact, learned Counsel on both sides are also not at variance in this regard.
19. I, therefore, find the present case where the plaintiff has miserably failed to prove that there is ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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invasion of his right of enjoyment of the property belonging to him by the defendant. It is also not proved that the plaintiff has suffered any loss on .
account of negligence or acts of omission and commission attributed to the defendant. On the other hand, the defendant has also filed a suit for damages against the plaintiff. Both the Courts, therefore, have rightly declined the relief sought by the plaintiff in the suit. It cannot also be said that on account of failure of the Courts below to discuss the ingredients of the perpetual injunction, the judgment and decree is vitiated. The present rather is a case where the plaintiff has failed to prove the essential ingredients for the grant of the nature of the relief sought in the plaint. The substantial question of law is answered accordingly.
20. Learned lower appellate Court has not committed any illegality or irregularity while dismissing the appeal and upholding the judgment ::: Downloaded on - 15/04/2017 18:28:27 :::HCHP
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and decree passed by the trial Court. The judgment and decree under challenge in the present appeal thus calls for no interference. Consequently, the .
appeal fails and the same is hereby dismissed. No order as to costs.
June 30, 2015. (Dharam Chand Chaudhary), (rc) Judge.
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