Delhi High Court

Mukit Abbasi & Anr. vs C.N. Choudhary & Ors. on 23 February, 2012

Author: Valmiki J. Mehta

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No. 236/2009;
                               RFA No. 301/2009 and
                               RFA No. 358/2009

%                                                     23rd February, 2012
1.     RFA 236/2009

       MUKIT ABBASI & ANR.                                   ..... Appellants
                    Through :            Mr. F. Hasan, Advocate.

                     versus

       C.N. CHOUDHARY & ORS.                     ..... Respondents
                    Through : Mr. N.K. Jha, Advocate for R-1
                              Mr. Anshu Mahajan, Advocate for
                              R-3/Bank.
                              Mr. Puneet Sharma and Mr. Ajay
                              Arora, Advocates for MCD-R-4.
                              Mr. K. Mohan, Advocate with Mr.
                              Venkitachalam P.S. R-6 in person.

                                      WITH

2.     RFA 301/2009

       C.N.CHOUDHARY                                          ..... Appellant
                   Through :             Mr. N.K. Jha, Advocate.

                     versus

       MUKIT ABBASI & ORS.                                  ..... Respondents
                    Through :            Mr. F. Hasan, Advocate for R-1&2.
                                         Mr. Anshu Mahajan, Advocate for
                                         R-4/Bank.
                                         Mr. Puneet Sharma and Mr. Ajay
                                         Arora, Advocates for MCD-R-5.
                                         Mr. K. Mohan, Advocate with Mr.
                                         Venkitachalam P.S. R-6 in person.

RFA Nos. 236, 301 & 358/2009                                    Page 1 of 10
                                    AND
3.     RFA 358/2009

       CORPORATION BANK                                      ..... Appellant
                    Through :            Mr. Anshu Mahajan, Advocate for
                                         Bank.

                     versus

       C.N.CHOUDAHRY AND ORS                    ..... Respondents
                   Through : Mr. N.K. Jha, Advocate for R-1
                             Mr. F. Hasan, Advocate for R-2&3.
                             Mr. Puneet Sharma and Mr. Ajay
                             Arora, Advocates for MCD-R-5.
                             Mr. K. Mohan, Advocate with Mr.
                             Venkitachalam P.S. R-6 in person.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J. (ORAL)

1. These three Regular First Appeals (RFAs) are filed against the same

judgment and decree of the trial Court i.e. the judgment and decree dated

23.3.2009. RFA 301 of 2009 has been filed by the plaintiff in the suit.

RFA 236 of 2009 has been filed by defendant Nos. 1 and 2 in the suit.

RFA No. 358 of 2009 is filed by defendant No. 4 in the suit. Plaintiff in

the suit was the purchaser of second floor with roof rights in the property

No. B-43/S-1, Dilshad Colony, Delhi. The defendant Nos. 1 and 2 in the

suit were the builders who along with defendant No. 3 sold the property,

being the second floor, with roof rights by means of a registered sale deed

dated 25.5.2004 to the plaintiff. Defendant No.4 is a Bank which

sanctioned the loan to the plaintiff against equitable mortgage of the

property in question.

2. The disputes which have arisen in this case are on account of the

peculiarity of builders in the state of New Delhi constructing a basement

which is partly below the ground level and partly above the ground level.

The peculiarity accentuated, inasmuch as, the basement which is partly

below the ground level and partly above the ground level, is called as a

lower ground floor instead of a basement, and the actual ground floor is

called as an upper ground floor. The reason for this convenient description

of the basement as the lower ground floor is because, at the relevant time

when the building in question was constructed, in Delhi, only three floors

could have been constructed on a plot of land, i.e. ground floor, first floor

and second floor. In addition to the three floors, a basement could also be

constructed, provided the same was duly sanctioned. In a way, therefore,

four floors could be constructed, i.e. basement plus three floors. However,

merely being entitled to construct a basement and three floors would not

mean that the basement could be constructed without sanction of the plan

for construction of the basement. In the facts of this case, the sanctioned

plan does not provide for construction of a basement, and therefore the

lower ground floor which is constructed partly above the ground level and

partly below the ground level can arguendo become the ground floor and

the second floor which is described as second floor will be a legal

construction, i.e. the second floor, but not the third floor which will be an

illegal construction. It is also possible that since the basement is not

sanctioned, then, the lower ground floor is actually a basement and since

only two other floors would be capable of being constructed under the

sanctioned plan and hence the third floor will be a legal construction

becoming the second floor as the lower ground floor will be a basement

constructed without sanction. I may note that in the present case, there is

no dispute that the sanctioned plan for the building does not show existence

of basement on the plot in question where the building had been

constructed. I may reiterate that if the basement was not sanctioned, in

view of the facts of the present case on the plot in question, then, so far as

the lower ground floor is concerned, possibly the same could be said to be a

basement and the second floor which was sold to the plaintiff would really

become the second floor, and not the third floor, which could not have been

demolished by the Municipal Corporation of Delhi (MCD). With this

preface, let me turn to the pleadings of the parties in the present case, the

issues framed and the judgment of the trial Court.

3. The plaintiff had filed the suit in which, though, in the prayer clause

relief was only claimed for specific performance, however, it is not

disputed between the parties that in the cause of action stated in the plaint

there was a claim which was laid out also with respect to damages. This

claim for damages was on the basis that the plaintiff suffered on account of

illegal acts of the defendants because the so called second floor which was

sold to him, in fact, turned out to be third floor which was demolished by

MCD and, therefore, the plaintiff lost the roof over his head, besides the

harassment and inconvenience caused to him and his family members.

4. The suit was contested by defendant Nos. 1 and 2/builders by taking

up a case that plaintiff with open eyes acted upon the sale deed in his

favour by taking possession of a particular floor in the property and

therefore it could not be argued on behalf of the plaintiff that he was

entitled to damages or the plaintiff is entitled to the property being the

second floor which was already sold to defendant No. 6, and which sale

took place prior to the execution of the sale deed in favour of the plaintiff.

The MCD was defendant No. 5 in the suit and the suit was also contested

by it. There is no decree of damages which has been passed against

defendant No.5/MCD. The defendant No.4/Bank, which gave the loan,

argued that there was no negligence on its part because the loan was given

as per the sanctioned plan which showed the existence of the second floor

and the loan was with respect to the second floor of the property.

Defendant No. 3 remained ex-parte in the trial Court.

5. After hearing learned counsel for the parties and after perusing the

records, it transpires that there is in fact a mistrial due to lack of appropriate

pleadings in the case and the plaintiff ought to have laid out an

additional/alternative cause of action and which is referred to hereinafter.

6. Before I proceed to state what alternatively ought to have been

the cause of action of the plaintiff and what possibly would have been the

defence of the defendants, the following admitted facts are to be noted:-

(i) The sanctioned plan for the building in question permits

construction of a total of three floors, however, there were four floors

which were constructed.

(ii) Since only three floors were sanctioned, either the lower

ground floor can become the basement, and hence the illegal

construction because the basement was not sanctioned, or if the

lower ground floor is in fact the real ground floor, then the upper

ground floor will become the first floor and, therefore, the so called

second floor of which possession was given to the plaintiff would be

in fact an illegally constructed third floor.

(iii) The plaintiff has not laid out and proved the case that

loss/damage has been caused to him because though he was sold the

floor of the property which was actually a second floor and a duly

sanctioned floor as per the sanctioned plan, but the legal second floor

was already sold earlier. It was only pleaded that there was a fraud

upon him because really the second floor was the third floor, i.e.

though the contract as entered into between the plaintiff and

defendant Nos. 1 to 3 was valid, inasmuch as, it was for the second

floor as per the sanctioned plan and which second floor was the

sanctioned floor, however, in reality this second floor was already

transferred to defendant No.6.

(iv) Defendant No.4/Bank, admittedly, gave a loan for the second

floor as per the sanctioned plan. This loan if given for the second

floor which, admittedly, was the sanctioned floor then in such

circumstances, defendant No.4 would not be liable at all.

(v) MCD demolished the floor of which possession was given to

the plaintiff, describing the same as the third floor, however, it is

possible that this floor may be a legal second floor and the lower

ground floor can be a basement, but would be an illegal

basement because there is no basement sanctioned as per the plan for

construction of the building.

7. In view of the above, it is agreed between learned counsel for the

parties that in exercise of my powers under Order 41 Rule 23 CPC read

with Order 41 Rule 33 CPC, the impugned judgment dated 23.3.2009 be set

aside, subject however, to the observations made herein below:-

(a) Plaintiff will be entitled to amend the plaint to set up a case of

the fact that what was demolished was, in fact, a legal second floor

which MCD could not have demolished and, in fact, it is the lower

ground floor which should have been sealed by MCD as it was in

fact the basement which was illegally constructed beyond the

sanctioned plan.

(b) The plaintiff can also in alternative take up a stand that he is

entitled to damages being the market value of the property prevailing

on the date of the illegal construction, less the price of `3,50,000/-

paid to the builders on the cause of action that if the existing lower

ground floor is taken as a real ground floor then the second floor

which was to be sold to him (and for which the agreement to sell and

sale deed was executed) however, when those contracts were

executed in favour of the plaintiff, the builders/defendant Nos. 1 to 2

had no title, inasmuch as, the second floor which was constructed

and proposed to be sold to the plaintiff was already sold to defendant

No.6. The plaintiff can also claim additionally the refund of the

price paid.

(c) The plaintiff will now file an amended plaint within a period

of four weeks from the first date which will be fixed before the

competent Court taking up his aforesaid alternative and additional

pleas as stated above by adding the material particulars and facts

with respect to the said causes of action. All the defendants can also

file their written statements in response to the amended plaint taking

all the defences permissible, both in facts and law.

(d) The trial Court, after the completion of pleadings will frame

issues, will give parties opportunities to lead evidence as per the

fresh pleadings and issues framed and will, thereafter, dispose of the

suit in accordance with law. Since there is already a considerable

lapse of time caused to the parties, the trial Court is directed to

dispose of the suit expeditiously and to the extent possible within a

period of not more than two years from the first date which will be

fixed by the trial Court after the pleadings are completed.

8. The present appeal is disposed of in terms of the consent order,

remanding the suit by setting aside the impugned judgment and decree,

however, nothing contained in today's order is a reflection on merits of the

case of either of the parties or a reflection as to the legal position which

would be applicable in the case, and the trial Court will, at the stage of final

arguments, dispose of the suit in accordance with law as per the position

which emerges on facts and law as applicable. Parties are left to bear their

own costs. Appeal is disposed of accordingly.

9. Both the parties are directed to appear before the District and

Sessions Judge, Tis Hazari Courts, Delhi on 27th March, 2012, and on

which date the District and Sessions Judge will mark the suit for disposal to

a competent Court in accordance with law. Trial Court record be sent back