Chhotey Singh vs Rajinder Singh Malik
2012 Latest Caselaw 2943 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                    Date of Judgment:03.5.2012

+      CM(M) No. 760/2007

       CHHOTEY SINGH                                 ..... Petitioner
                    Through:              Ms.Suman Kapoor, Adv.

                     versus


       RAJINDER SINGH MALIK                          ..... Respondent
                    Through:              Mr.Rakesh Sharma, Adv.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

CM No. 5511/2010

In view of the averments contained in the instant application, the

petition is restored to its original position.

Application disposed of.

CM(M) No. 760/2007 & CM Nos.5512/2010 & 6735/2011

1. The petitioner is aggrieved by the impugned order dated

23.03.2007 vide which his application seeking an amendment of the

plaintiff under Order 6 Rule 17 of the Code of Civil Procedure

(hereinafter referred to as the 'Code') had been declined.

2. Record shows that the present suit has been filed by the petitioner

Chhotey Singh against the respondent for mandatory injunction and

damages to the tune of Rs.8,50,000/-. This suit was filed in the year

2000. Contention of the plaintiff is that he is the owner and in

possession of the property bearing No. 39, Village Masoodpur, Post

Office, Vasant Kunj, New Delhi which is a single storey structure; there

is only store room on the roof; rest of the portion is lying open; the

house of the defendant is adjacent to the house of the petitioner towards

eastern side which is only being constructed up to ground floor level; in

1999, the respondent demolished the structure of his house and re-

constructed the same up to four storeys; during the course of this re-

construction, the defendant had damaged certain portion of the house of

the plaintiff/petitioner i.e. big cracks into room and one bathroom of the

petitioner; the defendant had in fact raised a 4" wall adjacent to the

house of the petitioner; the first, second and terrace floors have also

been raised which are towards the side of the house of the petitioner as a

result of which there has been damage. Accordingly suit claiming the

aforenoted prayers had been filed. In may, 2006, the petitioner had

noticed big gaps which have developed on the wall of his house and

which are adjacent to the house of the respondent. These glaring gaps

require the petitioner to incur heavy expenditure for their repair; the re-

construction which require place a heavy financial burden upon the

petitioner; accordingly the present application seeking enhancement of

damages from Rs.8.50 lacs to Rs.13.5 lasc has been prayed for.

3. The submissions made in the application under Order 6 Rule 17

of the Code have been perused. Contention is that because of the huge

gaps which were noted by the plaintiff in his wall which is adjacent to

the wall of the defendant and which cracks have developed and deeper

and larger in size because of the construction activities of the defendant;

an Architect had been engaged to inspect the premises of the plaintiff

who had found that the wall of the plaintiff was in dangerous and

inhabitable condition because of the construction raised by the

defendant; Wall 'A', 'B', 'C' and 'D' (depicted in the site plan) show

that the heavy expenditure have to be incurred by the plaintiff to

reconstruct these damaged walls; accordingly the present application

seeking enhancement of claim to Rs.13.5 lacs had been filed.

4. Reply has been filed opposing the application.

5. The purport of provisions contained in under Order 6 Rule 17 of

the Code is that if the controversy in dispute will be enlightened by the

proposed amendment and no prejudice is suffered by the non-applicant,

coupled with the fact that the application has been filed bonafide, the

Court may grant such a prayer. In the instant case, the petitioner has

already filed a suit for mandatory injunction and damages to the tune of

Rs.8.50 lacs which was pursuant to the inspection report of a qualified

Architect carried out on 15.07.2006 (copy of which has been placed on

record). He submission of the respondent that order dated 15.7.2005

had declined the same prayer is a wrong submission; vide order dated

15.7.2005 the prayer of the petitioner the petitioner to summon a witness

whose name did not find mentioned in the original list of witnesses was

declined. No prejudice would also be suffered by the petitioner; the

prayer now sought for is only in tune with the already made prayer; it is

only the amount which is sought to be enhanced and this is in view of

the glaring gaps noted by the plaintiff in his wall which as per the

inspection report will cause a heavy financial burden upon the petitioner

for the purpose of its repairs. The impugned order disallowing the prayer

is set aside. The amended plaint is taken on record. Needless to state that

the report of the Architect relied upon by the petitioner will have to be

proved in accordance with law. Order is passed subject to payment of

Rs.20,000/- as costs.

6     Petition disposed of.

                                         INDERMEET KAUR, J

MAY      03, 2012
A