Delhi District Court
Major Rajinder Singh Chimni (Deceased) vs Mr. Jagmohan Dilawari on 22 November, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
New CS No. 14158/16
In re:
Major Rajinder Singh Chimni (Deceased)
Through his Legal Representative
Amarjeet Singh Chimni
S/o late Major Rajinder Singh Chimni
R/o C 68, East of Kailash
New Delhi - 110 065 ......... Plaintiff
Versus
1. Mr. Jagmohan Dilawari
S/o Late Sh. Charan Das
R/o I-8, Jangpura-B
New Delhi - 110 014
2. Smt. Jaswant Kaur Dhadi
W/o Late S. Tirath Singh Dhadi
R/o C 67 East of Kailash
New Delhi - 110 065
3. South Delhi Municipal Corporation
Dr. S.P. Mukherjee Civic Centre
Minto Road, New Delhi - 110 002
through its Commissioner
.......Defendants
SUIT FOR DAMAGES
Date of institution of present suit : 26.05.1995
Date of receiving in this court : 08.02.2016
Date of reserving order : 21.10.2016
Date of Judgment : 22.11.2016
JUDGMENT
The plaintiff has instituted the present suit seeking damages of Rs 10 Lakhs against the defendants.
1. Brief facts of the case are that plots No. C-68 and C-67 situated in East of Kailash, New Delhi are adjoining plots measuring 1800 sq. yards each in CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 1 of 11 area and has a common boundary line of 60 ft. in length. Plot no. C-68 is held by the plaintiff under perpetual lease from DDA and had a house built in 1972/73. Plot C-67 is held by defendant no. 2 under perpetual lease who got the building plan sanctioned by MCD in December 1992. MCD served show cause notice no. 12405 dated 31.03.1993 upon the defendant no. 2 who filed appeal no. 361/ATMCD/93 before the Appellate Tribunal MCD against the sealing of premises. Defendant no. 1 was termed as builder in the documents of MCD. However, defendant no. 1 had claimed himself as owner by virtue of Power of Attorney in his favour given by Smt. Jaswant Kaur Dhodi, defendant no. 2.
2. It is further averred that defendants no. 1 and 2 in connivance with defendant no. 3 had constructed a basement and a structure in C-67, East of Kailash in gross violations of the building bye laws. Defendants no. 1 and 2 had not taken proper precautions to make the walls and floor of the basement water tight as per the building bye laws. The defendants no. 1 and 2 had not taken adequate fire precautions as prescribed by building bye laws and had therefore created a fire hazard in the neighbourhood of the plaintiff. The defendants no. 1 and 2 had built the front varanda over a raised platform in gross violation of building bye laws and had therefore taken away the privacy of the plaintiff. The structure constructed by the defendants no. 1 and 2 in connivance with defendant no. 3 was highly dangerous for the adjoining house of the plaintiff. The plaintiff had filed a criminal suit of damages against the defendants which was pending in Patiala House Courts.
3. It is further averred that the construction in C-67, East of Kailash, New Delhi was in willful disobedience of the order of Civil Judge Sh. Rakesh Kapoor in suit No. 1144/92 issued on 27.11.1992. Contempt of court proceedings were going on against the defendants. Hon'ble High Court of Delhi in C.M. No. 467 of 1993, on 05.01.1994, ordered rectification of the whole structure from basement to the top floor. The order had been willfully disobeyed by all the defendants and contempt of court proceedings CCP 220/94 was in progress at CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 2 of 11 Hon'ble High Court against all the defendants and the concerned officials of MCD. Plaintiff prayed that an amount of Rs.10,00,000/- be awarded to the plaintiff as damages by passing an award or an order or decree in favour of the plaintiff and against all the defendants. Hence, the present suit for damages was filed.
4. Upon being served with summons of the suit, defendant No. 1 and defendant No. 3 filed written statements separately. Defendant No.2 did not turn up and was proceeded against ex-parte. Defendant no. 1 raised preliminary objections that the suit as framed was misconceived and without any merits and was motivated to harass and coerce him to agree to the illegal, arbitrary and untenable financial demands raised by the deceased plaintiff and his sons. Smt. Jaswant Kaur was the previous owner and the answering defendant had purchased the said property from her. She had, therefore, no concern with the said property. Defendant no. 3 further stated that due building sanctions were obtained from defendant no. 3 and minor deviation which were unintentional and perhaps due to mistake of the contractor, were also rectified and brought in order to the satisfaction of defendant no. 3 who had confirmed in conformity of Bye Laws by way of affidavit filed in C.M.(M) 467/97 and also by way of certificate issued by the Zonal Engineer (B) Central Zone, MCD and proceedings under Section 345A were dropped vide order dated 22.05.1995. On merits, he denied the averments made in the plaint.
5. Defendant no. 3 filed written statement raising preliminary objection that the present suit was not maintainable against the answering defendant as no notice as required under Section 477 and 478 of the DMC Act had been issued to the answering defendant. The suit was liable to be dismissed on this ground alone. The fact of the matter was that the building plans in respect of the property no. C-67, East of Kailash, New Delhi-65 were sanctioned vide file no. 647/B/92 dated 03.01.1992. Further the owner/builder deviated from the sanctioned building plan and carried out the construction which was booked vide CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 3 of 11 file no. 304/B/UC/NDZ/92 dated 31.03.1993 and show cause notice under Section 343 and 344 of the DMC Act was issued in the name of Smt. Jaswant Kaur Dhodhi. Since no reply was sent by the owner/builder, demolition orders was passed on 13.04.1993. Further action under the amended Act was also taken and show cause notice under Section 345A of DMC Act was also issued and sealing order was passed. The property was sealed. Smt. Jaswant Kaur Dhodhi then filed an appeal and during the course of hearing, the owner/builder came forward for the rectification of the building as per sanctioned plan which was granted by the Hon'ble Tribunal. Rs. 59,502/- was deposited by the owner/builder as compounding fee and also rectified the non-compoundable deviations. On merits, the averments made by the plaintiff were denied.
6. Plaintiff filed replication to the written statement of defendant No.1 and defendant no. 3 and reiterating and re-affirming the averment made in the plaint.
7. On the pleadings of the parties, following issues were framed vide order dated 15.02.2010:
1. Whether the plaintiff is entitled to damages of Rs.10 lakhs as alleged? OPP
2. Whether the suit is not maintainable as no notice u/s 477 and 478 of DMC Act has been issued? OPD3
3. Whether the suit is not maintainable as the plaintiff has not approached this court with clean hands and has suppressed material fact from this court? OPD
4. Whether there is no cause of action against defendants as alleged? OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
6. Relief.
CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 4 of 11
8. In order to prove plaintiffs' case, plaintiffs examined Sh. Amarjeet Singh as PW-1 who tendered his evidence by way of affidavit Ex. PW1/1 wherein he relied upon documents i.e. site plan Ex. PW-1/A, certified copy of lease deed Ex. PW1/B, certified copy of order dated 25.06.1993 Ex. PW1/C, certified copy of order dated 27.11.1992 Ex. PW1/D, certified copy of written statement of Additional Deputy Commissioner MCD dated 09.09.1993 in Civil Suit No. 1144 of 1992, certified copy of report of Junior Engineer (building) Mr. Vajinder Dahiya dated 09.08.1994 Ex. PW1/F, certified copy of Sh. M.A. Khan, Presiding Officer, Appellate Tribunal MCD dated 25.06.1993 Ex. PW1/G, certified copies of orders dated 29.03.2003 Ex. PW1/H and Ex. PW1/I, photographs annexed with the plaint Ex.PW1/J, certified copy of report of local commission Ex. PW1/K, certified copy of order dated 05.01.1994 Ex. PW1/L, original copy of Government Approved Valuer SLA No. 18210/1998 dated 03.12.1993 Ex. PW1/M, certified copies of orders dated 11.09.1996, 24.03.2000 and 22.05.2000 Ex. PW1/N to PW1/P, List of unauthorized construction submitted in CCP 220 of 1994 Ex. PW1/Q and Affidavit of MCD in CCP 220 of 1994 Ex. PW1/R. His examination in chief was not concluded as it was deferred to the extent of exhibiting documents kept in sealed cover. PW1, thereafter, never appeared in the witness box either to complete the exhibition of documents or to get himself cross examined.
9. Defendant No. 3 examined Sh. Naresh Yadav, Assistant Engineer (Building) as D3W1who tendered his evidence by way of affidavit Ex. D3W1/A wherein he relied upon documents i.e. photocopy of FIR dated 31.03.1993 Ex. D3W1/1, photocopy of show cause notice dated 31.03.1993 Ex. D3W1/2, photocopy of demolition order u/s 343 (1) of DMC Act dated 13.04.1993 Ex. D3W1/3, photocopy of demolition notice dated 13.04.1993 Ex.D3W1/4, original status report dated 15.12.2010 Ex. X-1 and photocopy of area chart of the suit property Mark A-1. He was cross-examined by the plaintiff.
10. Testimony of respective witnesses have been appreciated while CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 5 of 11 recording issue wise findings in order to avoid repetition
11. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the respective side, issue wise findings as under:-
ISSUE No. 1: Whether the plaintiff is entitled to damages of Rs.10 lakhs as alleged? OPP
12. Onus to prove this issue is upon the plaintiff. Plaintiff examined PW-1 Sh. Amarjeet Singh who was brought on record as legal heir of the plaintiff after the death of the plaintiff. PW-1 filed his affidavit Ex.PW1/1. In his examination-in-chief he had almost verbatim repeated the averment made in the plaint and relied upon the documents which he in his affidavit referred to as Ex. PW1/A to Ex. PW1/R. He partly tendered his examination-in-chief on 29.03.2010 and his examination-in-chief was deferred to the extent of exhibition of documents in sealed cover. Thereafter PW-1 never turned up either for completion of his chief examination or for his cross-examination, for the reason best known to him. Thereafter plaintiff sought time to examine Sh. S.K. Wadhwa, the government approved valuer and after repeated attempts to secure his presence, plaintiff dropped the said witness as noted in daily order dated 11.08.2010. Thereafter plaintiff has not wished to examine any other witness nor has offered himself for his cross-examination. Therefore, plaintiff by his own conduct has closed his evidence by necessary implication. Defendant No.3 has examined one witness D3W1 who was cross-examined by the plaintiff.
The main grievance of the plaintiff is that because of unauthorized construction and digging of basement in property bearing no. C-67, East of Kailash, New Delhi under gross violation of building bye laws, defendants have overloaded the soil with excessive coverage on the basement, ground floor, first floor, second floor and barsati and defendants have not taken proper precautions to make the walls and floor of the basement water tight as per the building by laws. The defendants no. 1 and 2 had not taken adequate precautions as CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 6 of 11 prescribed by building bye laws and have therefore created the fire hazard in the neighbourhood of the plaintiff. The structure constructed by the defendants no. 1 and 2 in connivance with defendant no. 3 is stated to be highly dangerous for the adjoining house of the plaintiff and poses a perpetual threat to its very existence. The house of the plaintiff is stated to be in precarious condition and was likely to collapse on the slightest tremor of the earth quake or seepage of water below the walls and floor of the house of plaintiff during heavy rainfall due to the illegal and unauthorized construction raised by the defendants no. 1 and 2 in C-67, East of Kailash. For the aforesaid perpetual threat and likelihood that plaintiff's house would be collapsed in the event of minor earth quake and rainfall, plaintiff has sought Rs.10,00,000/- as damages.
13. It is admitted case of the plaintiff that no illegal act or wrongful act has been committed by the defendants in the property of the plaintiff. The defendants No.1 and 2 have done threatful construction within their premises. The present suit has been filed by the plaintiff in anticipation that the construction carried out by the defendants No.1 and 2 within their premises was likely to cause damage to the property of the plaintiff on the slightest tremor of the earth quake and rainfall. The present suit has been filed on 22.05.1995 and since then Delhi has experienced number of earth quakes, plaintiff's property is still standing.
14. Under the law damages can be granted on breach of contract or upon wrongful tortuous act causing harm. Admittedly present claim of damages is not covered under the head of "breach of contract". Thus the present suit is based on tortuous act. Admittedly till date no loss has occurred to the plaintiff and there is no law under which one can be compensated for unforeseen loss which is still in anticipation. Since the alleged tortuous act of the defendant has not resulted into any loss to the plaintiff so far, the plaintiff cannot claim damages as no cause of action has accrued so far in favour of plaintiff and against defendants. Surprisingly in the present suit, plaintiff is claiming only CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 7 of 11 damages but has not sought any relief against the defendant by asking for removal of the probable threat to the life and property in the adjoining area. Since 1995 till the framing of issues in 2010, plaintiff left no stone unturned in stalling the further proceeding in the matter and has not spared any substantial provisions of Civil Procedure Code for moving application after application. As noted above, the onus was upon the plaintiff to prove that construction raised by the defendant causes perpetual threat to the existence of the house of the plaintiff or that the house of the plaintiff was in precarious condition or was likely to be collapsed on the slightest tremor of earth quake and seepage of water but plaintiff has failed to prove the same such precarious condition of the property of the plaintiff, apart from failing to show any law which allows grant of damages in anticipation of loss.
Even if there was some deviation in the construction of the property that ipso-facto does not prove that construction so raised poses threat to the property of plaintiff. Moreover even if it is accepted that such construction poses threat to the property of the plaintiff then appropriate remedy would have been to ask for removal of threat either by way of demolition or by rectification as the case may be. In the circumstance of the present case damages cannot be appropriate relief.
15. Defendant no. 3 has pleaded that defendant carried out construction in the suit property after obtaining sanction of construction. When defendant deviated from sanctioned plan, show cause notice was issued and property was sealed. Defendant rectified the same and compoundable deviations were compounded on the payment of charges. Plaintiff has not examined any expert witness to measure the probable threat to the existence of the house of the plaintiff and adjoining houses. In these circumstances, where plaintiff has not been able to prove the probable threat to his house, claim is not sustainable. Even otherwise there is no law for grant of damages for loss in anticipation.
In view thereof, issue no. 1 is decided against the plaintiff and against the defendants.
CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 8 of 11 ISSUE No. 2: Whether the suit is not maintainable as no notice u/s 477 and 478 of DMC Act has been issued? OPD3
16. Onus to prove this issue is upon the defendant no. 3. It is the claim of the defendant no. 3 that present suit is not maintainable as no notice under Section 478 of DMC Act, 1957 was served and suit is not maintainable also in view of Section 477 of the said Act. Section 478 of DMC Act prohibits filing of suit against the Municipal Corporation without serving notice and before expiry of two months after the service of the notice. Only in case of relief seeking injunction a party is exempted from serving such notice. Similarly under Section 477 of DMC Act no suit or prosecution shall be entertained in any court against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, for anything which is in good faith done or intended to be done, under this Act or any rule, regulation or bye-law made thereunder.
17. Admittedly in the present case defendants no. 1 and 2 was given sanctioned for construction. The plaintiff has alleged deviation and illegal construction but has not pointed out which are the alleged illegal construction. The only contention of the plaintiff is that plaintiff dug the earth near the dividing wall of two properties which has caused a threat to the structure of the plaintiff's property. It has not been alleged that the basement was dug without any sanction plan which would have enabled municipal authority to take action. It is the case of the plaintiff himself that MCD issued notice and thereafter sealed the property that means defendant no. 3 had taken action as per law. However, in the present case, the question is whether plaintiff is required to serve notice as required under Section 478 before filling suit for damages against MCD (now SDMC). Admittedly no such notice has been served but section specifically prescribes that such notice must be served before filling suit of any kind except for injunction against defendant No. 3. However, no notice under Section 477 was CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 9 of 11 required as plaintiff has not challenged the sanction of construction plan or compounding of compoundable deviation.
Accordingly, issue no. 3 is decided against the plaintiff and in favour of defendant no. 3.
ISSUE No. 3: Whether the suit is not maintainable as the plaintiff has not approached this court with clean hands and has suppressed material fact from this court? OPD
18. Onus to prove this issue is upon the defendant no. 1. However, defendant no. 1 did not lead any evidence as after contesting for sometime he was proceeded ex-parte. Since there is no evidence from the side of defendant no. 1, therefore, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE No. 4: Whether there is no cause of action against defendants as alleged? OPD
19. Onus to prove this issue is upon the defendants. It has already been found herein before while recording findings on issue no. 1 that plaintiff's case is based on threat to the property of the plaintiff and the probable loss likely to result from the aforesaid threat to the property of the plaintiff. It has already been noted herein before that there is no law under which anticipated loss can be awarded in the absence of any damage. Admittedly till date no damage has resulted to the property of the plaintiff assignable to the alleged tortuous/ wrongful act of the defendants in digging the basement in their own property or other unauthorised construction. Cause of action is defined as bundle of facts which if traversed, plaintiff would be required to prove in order to be able to get the relief from the Court. It has already noted herein before that the suit has been filed by the plaintiff under anticipation of damages to the property of plaintiff on account of digging of basement and unauthorized construction by defendants and in fact no damages to the property of plaintiff has occurred so far. Suit cannot be based on anticipated loss. Therefore, there is no cause of action against the defendants so far as relief of damages is concerned.
Hence, issue no. 4 is decided against the plaintiff and in favour of CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 10 of 11 the defendants.
ISSUE No. 5: Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
20. Onus to prove this issue is upon the defendant no. 1. However, defendant no. 1 did not lead any evidence as after contesting for sometime he was proceeded ex-parte. Since there is no evidence from the side of defendant no. 1, therefore, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF In view of the findings recorded on all issues, suit of the plaintiff is dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 11 pages) Delhi / 22.11.2016
CS No. 14158/16 Maj. R.S. Chimni (Retd.) v Jagmohan Dilawari & Ors Page No. 11 of 11