Pushpawati vs Narain Prasad Gupta & Ors
2013 Latest Caselaw 5452 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 26th November, 2013.

+                               RFA 258/2013

       PUSHPAWATI                                           ..... Appellant
                          Through:     Mr. V.K. Sharma, Advocate.

                                     Versus

    NARAIN PRASAD GUPTA & ORS                  ..... Respondents
                  Through: Mr. Gautam Dutta, Adv. for R-1, 3, 4,
                           5 & 6.
                           Mr. Karan Jain, Adv. for R-2 MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 24 th November,

2012 of the Court of Additional District Judge (ADJ) (Central-07), Tis

Hazari Courts, Delhi of dismissal of Suit No.15/2008 filed by the appellant

consequent to rejection under Order VII Rule 11 of the Civil Procedure

Code (CPC), 1908 of plaint therein, after issues had been framed and

substantial evidence had been recorded in the suit.

2. Notice of the appeal was issued and thereafter the appeal was

admitted for hearing and the Trial Court record requisitioned. Considering

the nature of the controversy, the hearing of the appeal was expedited.

3. The counsel for the appellant and the counsel for the respondents

No.1, 3, 4, 5 & 6 have been heard.

4. The appellant instituted the suit from which this appeal arises,

claiming the following reliefs:

"(a) pass a decree to the sum of Rs.9,92,500/- (Rs. Nine Lac Ninety Two Thousand Five Hundred Only) alongwith pendentlite and future interest @ 24% p.a. and cost of the suit jointly and severally against defendant No.1 and defendants No.3 to 6 and in favour of the plaintiff regarding the estimated cost of reconstruction of property of the plaintiff i.e. 4/1156, Gali No.11, Bhola Nath Nagar, Shahdara, Delhi which has been damage due to illegal acts of unauthorised and unlawful construction carried out by defendant No.1 and subsequently purchased by defendants No.3 to 6 in Property No.438/4, Gali No.11, Bhola Nath Nagar, Shahdara, Delhi.

(b) pass a decree of mandatory and permanent injunction against defendant No.2, thereby directing the defendant No.2 to take legal action in accordance with law against the property bearing No.438/4, Gali No.11, Bhola Nath Nagar, Shahdara, Delhi as the defendant No.1 had constructed the same illegally and unauthorisedly without sanction/permission and approval of defendant No.2.

(c) pass a decree of mandatory and permanent injunction against defendant No.1 and defendants No.3 to 6 thereby directing and commanding said defendants, their associates, agents, assignees, employee, etc. not to construct the property No.438/4, Gali No.11, Bhola Nath Nagar, Shahdara, Delhi without approval / sanction /

permission of defendant No.2 or any other concerned authority."

5. Needless to state that the respondents contested the suit by filing a

written statement; though in the circumstances it is not necessary to detail

the pleadings, but the flavor thereof can be gauged from the issues framed in

the suit on 29th September, 2009, as under:

"1. Whether the plaintiff has no locus standi to file the present suit neither being the owner nor in occupation of the property in question? (OPD-1)

2. Whether the suit of the plaintiff is bad for non-joinder of parties? (OPD-1) 2A. Whether the suit is bad for mis-joinder of defendant No.4 to 6?

(OPD 4 to 6)

3. Whether the plaintiff is entitled to relief of damages as asked for in the plaint alongwith interest? (OPP)

4. Whether the plaintiff is entitled to mandatory and permanent injunction as asked for in the plaint? (OPP)

5. Relief."

6. The appellant/plaintiff on 5th October, 2011 withdrew the reliefs of

mandatory and permanent injunction aforesaid claimed in the suit.

7. After several witnesses of the appellant/plaintiff had been examined,

an application under Order VII Rule 11 of the CPC was filed by the

respondents/defendants 1 & 3 contending, (i) that during the recording of the

evidence it had been disclosed that the property No.4/1156, Gali No.11,

Bhola Nath Nagar, Shahdara, Delhi had already been sold by the

appellant/plaintiff to one Smt. Priyanka Jain vide registered Sale Deed dated

13th July, 2011; (ii) that since the suit, only for recovery of the costs of

dismantling and costs of reconstruction thereof survived and the question of

the appellant/plaintiff, after sale of the property, being entitled to dismantle

the property and reconstruct the same did not arise and further since the

purchaser of the property had immediately after purchase already

demolished the property and raised new construction thereon, the suit had

become infructuous.

8. The appellant/plaintiff filed a reply to the said application, not

denying the sale of the property, but controverting that the suit had become

infructuous.

9. The learned ADJ vide the order rejecting the plaint has recorded that

the contention of the counsel for the appellant/plaintiff before the Suit Court

was that the appellant/plaintiff is entitled to compensation towards mental

harassment. The learned ADJ has however held that the appellant/plaintiff,

though in the notice preceding the suit had claimed compensation for mental

harassment, but in the suit filed, had not made any claim on this account.

The learned ADJ accordingly allowed the application under Order VII Rule

11 of the CPC and held that the suit after sale of his property by the

appellant/plaintiff did not disclose any cause of action. It was also observed

that merely because substantial evidence had been recorded, was no ground

to complete the trial.

10. Notice of the appeal was issued on the contention of the

appellant/plaintiff, without filing any copy of the plaint with the appeal, that

his suit was for recovery of damages for injury already caused to his

property by the respondents/defendants while constructing their property,

and which relief survived notwithstanding the sale of his property by the

appellant/plaintiff. However, on receipt of the Trial Court record, the relief

claimed by the appellant/plaintiff is found to be not of recovery of

compensation for loss already suffered but for recovery of the amounts

which the appellant/plaintiff would be required to incur in dismantling and

reconstructing his property.

11. Faced therewith, the counsel for the appellant/plaintiff states that the

relief though claimed in the language aforesaid, is indeed for compensation

for loss caused to his property.

12. I am afraid, it cannot be held to be so. A perusal of the contents of the

plaint shows the plea of the appellant/plaintiff to be that on account of

unauthorized and illegal construction by the respondents/defendants in their

property adjoining to the property of the appellant/plaintiff, the property of

the appellant/plaintiff had become weak, unstable and unsafe and light and

air to the property of the appellant had also been blocked and the

appellant/plaintiff was thus required to demolish the existing structure of his

property and raise new construction thereon and costs whereof were claimed

in the plaint.

13. The appellant/plaintiff, after selling his property, did not take any plea

that he got lesser than the market price thereof for the reason of unauthorized

and illegal construction by the respondents/defendants in their property. The

appellant/plaintiff in reply to the application under Order VII Rule 11 of the

CPC also did not deny that the purchaser from him had immediately after

purchase demolished and reconstructed the said property. Therefrom it is

borne out that the purchaser paid the price to the appellant/plaintiff for the

land underneath the property and not for the superstructure thereof.

14. The appellant/plaintiff now in arguments in this appeal cannot be

permitted to change the nature of his claim. His claim as borne out from the

plaint, was for expenses required to be incurred by him on reconstruction of

his property. Now, when the appellant/plaintiff, owing to sale of his

property, is no longer entitled/competent to demolish or reconstruct his

property, the question of his being entitled to any expenses on such account,

does not arise.

15. In fact it appears that the argument raised in this appeal is different

from the argument raised before the learned ADJ, of the appellant/plaintiff

being entitled to damages for harassment and which is also not the case

pleaded.

16. No error is thus found in the order of rejection of plaint. It has been

held in Shri Varinder Sahni Vs. Pratap K. Kaula MANU/DE/3224/2013

that a cause of action which may exist on the date of institution of suit, can

disappear owing to subsequent events and continuation of a suit which has

become infructuous by disappearance of cause of action will amount to

abuse of process of Court and such suit should be disposed of as intructuous.

It has further been held by the Supreme Court in Shipping Corporation of

India Ltd. Vs. Machado Broters (2004) 11 SCC 168 that if by subsequent

event the original proceeding has become infructous, it is the duty of the

Court to take such action as is necessary and which includes disposing of

infructuous litigation as continuing such litigation will be like flogging a

dead horse and not benefit any of the parties.

17. There is thus no merit in this appeal, which is dismissed. However, in

the facts and circumstances, no costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 26, 2013 bs..