Ram Rani Dhingra vs Virender Bhatia & Ors
2016 Latest Caselaw 2839 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 19th April, 2016

+                               RFA 579/2006
       RAM RANI DHINGRA                                   ..... Appellant
                    Through:          Mr. Rakesh Dhingra, Adv.

                                    Versus

    VIRENDER BHATIA & ORS                   ..... Respondents

Through: Mr. Sameer Nandwani, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908

(CPC) impugns the judgment and decree dated 19th May, 2006 of the Court of

Additional District Judge (ADJ), Delhi of dismissal of Suit No.445/2003 for

recovery of Rs.3,60,000/- as compensation for damage caused to the

immovable property.

2. The appeal was accompanied with an application for condonation of 23

days delay in filing thereof. Notice of the application for condonation of delay

was issued and vide order dated 6th August, 2007, the delay in filing the appeal

was condoned and the appeal admitted for hearing. The counsels were heard

on 26th August, 2015 and judgment reserved. The trial court record

requisitioned has been perused. The counsel for the appellant / plaintiff has

also filed written submissions.

3. The appellant on 1st July, 2003 instituted the suit from which this appeal

arises pleading i) that the appellant / plaintiff is the owner in occupation of

house No.324, Tarun Enclave, Pitampura, New Delhi; ii) that at the time the

appellant / plaintiff constructed her house in or about the year 1988-89, the

adjoining plots No.323 and 325 were lying vacant; iii) that subsequently in the

year 1994, a house was constructed on plot No.325 by one Mr. R.K. Jhanji; iv)

subsequently in the year 1996-97, the owner of plot No.323 constructed a

kachcha house; v) thereafter the three respondents / defendants viz. Mr.

Virender Bhatia, Mr. Vijay Bhatia and M/s Bhatia Estates Pvt. Ltd. purchased

property No.323 and in or about the year 1998-99, demolished the kachcha

construction and commenced digging for laying „DPC‟; vi) that the

respondents / defendants left the digging open for a long time which resulted in

sliding of soil from the adjoining dug up plot No.323 to beneath the foundation

of the house of the appellant / plaintiff; vii) that the respondents / defendants in

the year 2000 raised a three storied house on plot No.323; viii) that during the

construction by the respondents / defendants of the first floor of property

No.323, because of the improper and illegal methods adopted by the

respondents / defendants, severe damage was caused to house No.324 of the

appellant / plaintiff; ix) that initially some repairs were got done by the

respondents / defendants in the property of the appellant / plaintiff but

thereafter subsequent cracks appeared; x) that the respondents / defendants

carried out the construction at property No.323 without following the

sanctioned plans; xi) that because of the improper and illegal methods adopted

by the respondents / defendants during construction of their property, severe

damage has been caused to the property of the appellant / plaintiff; xii) that

though the respondents / defendants initially promised that they will get the

needful repairs carried out but sold the property No.323 without rectifying the

damage caused to property No.324 of the appellant / plaintiff; xiii) that over a

period of time, more deepening cracks in the walls and ceiling of the property

of the appellant / plaintiff have appeared because of continued pressure of

building on plot No.323 and adjusting of soil underneath, all because of

malpractices committed by the respondents / defendants while constructing on

plot No.323; xiv) that the experts engaged by the appellant / plaintiff have also

opined that the damage to the property of the appellant / plaintiff is due to the

negligent and careless construction by the respondents / defendants on the

adjoining property; xv) that as per the report of the Architect / Civil Engineer,

the damage to the property of the appellant / plaintiff is of Rs.3,00,000/-

besides loss on account of shifting from the house by the appellant / plaintiff in

a rented house amounting to approximately Rs.60,000/-; and, xvi) that the

cause of action for the suit accrued in July, 2000 when the cracks first appeared

in the property of the appellant / plaintiff, in October, 2000 when further cracks

developed and finally in December, 2002 when the respondents / defendants

refused to carry out repairs as earlier promised by them.

4. The respondents / defendants contested the suit by filing a joint written

statement pleading i) that the suit claim was barred by time; ii) that

construction at property No.323 was commenced in the month of January,

2000 on the basis of the site plan got sanctioned and was carried out in April,

2000 and stopped temporarily and thereafter the property was sold in an

unfinished condition to one Mr. Surrender Kumar Bansal on 5th June, 2000

vide an Agreement to Sell and Mr. Surrender Kumar Bansal after completing

the construction has sold the property to Mrs. Priya Mittal vide Agreement to

Sell dated 16th December, 2000; iii) that there was no construction by the

respondent / defendant no.1 at the site after April, 2000; iv) that the

respondents / defendants no.2&3 have nothing to do with the suit property

which belonged exclusively to the respondent / defendant no.1; v) that the

respondents / defendants are in the business of construction for 35 years and

have earned a reputation for their honesty, bona fides and best quality of

construction and material used by them; vi) that the suit is a device on the part

of the appellant / plaintiff to save her house from being sealed and demolished

for the reason of unauthorized construction therein; vii) that the appellant /

plaintiff has covered 100% of the plot area instead of 60% as permitted under

the law; viii) that the appellant / plaintiff has constructed a canopy of 10 feet

instead of 8 feet; ix) that the appellant / plaintiff had covered the rear set back

and front set back on the first floor; x) that the appellant / plaintiff had

constructed a room on the top floor without any sanction from municipal

authorities; xi) that no damage attributable to the respondent / defendant no.1

has been caused to the property of the appellant / plaintiff; xii) that the

respondent / defendant no.1 had not kept any excavated portion open for a long

time; xiii) that the respondent / defendant no.1 had not carried out any repair

work in the property of the appellant / plaintiff at any time; and, xiv) that no

reports of the experts if any hired by the appellant / plaintiff has been

furnished.

5. Though the appellant / plaintiff is found to have filed a replication but

need to refer thereto is not felt.

6. On the pleadings of the parties, the learned ADJ on 11 th August, 2003

framed the following Issues in the suit:

"(1) Whether the suit is barred by limitation as claimed in P.O.

No.2 in the written statement? OPD

(2) Whether the suit is bad for misjoinder of parties? OPD

(3) Whether the property of the plaintiff has suffered damages

due to acts or omission or negligence on the part of defendants as

alleged in the plaint? OPD

(4) Whether the plaintiff is entitled to recover the damages, if

so, to what amount the plaintiff is entitled? OPD.

(5) Relief."

7. The appellant / plaintiff besides examining her son as her attorney,

examined one government approved contractor and registered valuer as an

expert and one neighbour. The respondents / defendants besides examining the

respondent / defendant no.2 Sh. Vijay Bhatia, examined one building

contractor.

8. The learned ADJ has vide the impugned judgment and decree dismissed

the suit finding/observing/holding:

(i) that the appellant / plaintiff had not given any specific date when

the cracks appeared in her property and the son and attorney of the

appellant /plaintiff in his cross-examination stated that he did not

remember the exact date, month and year when the cracks first

appeared in the property; all that he stated was that cracks

occurred when the construction was going on and before Mrs.

Priya Mittal shifted to the house;

(ii) however the attorney of the appellant / plaintiff in his cross-

examination further stated that the construction on plot No.323

was initially done in the year 1998-99 when the first „DPC‟ was

laid;

(iii) that from the evidence of the appellant / plaintiff, it is clear that

construction work was carried out in property No.323 in 1999-

2000;

(iv) that the respondents / defendants had proved the Agreement dated

10th January, 2000 vide which they purchased the property and the

Agreement dated 5th June, 2000 vide which they sold the property

to Sh. Surrender Kumar Bansal;

(v) that the objection of the appellant / plaintiff of admission into

evidence of the said Agreements to Sell on the ground of the same

being not registered was of no avail since at that time the

Agreement to Sell was not required to be registered;

(vi) that thus the respondents / defendants remained owner in

possession of plot No. 323 from 10th January, 2000 to 5th June,

2000;

(vii) that the appellant / plaintiff had not proved in which month of the

year 2000 digging in property No.323 had taken place though the

attorney of the appellant / plaintiff stated that second digging took

place during the year 1999-2000;

(viii) that on the basis of the evidence led by the appellant / plaintiff, it

was proved that cracks had developed in the property of the

appellant / plaintiff between January, 2000 till June, 2000;

(ix) that under Article 113 of the Limitation Act, 1963 the period of

limitation to file a suit to recover damages is three years;

(x) that no explanation had been given as to why the appellant /

plaintiff kept on silently watching the cracks till 31 st January,

2003 when notice was issued;

(xi) that the suit filed in July, 2003 was thus barred by time;

(xii) that since the damage claimed by the appellant / plaintiff was

attributed to respondents / defendants, non-impleadment of the

owners from whom the respondents / defendants has purchased

the property or the person to whom the respondents / defendants

had sold the property was of no consequence; hence Issue No.2

was decided in favour of the appellant / plaintiff and against the

respondents / defendants;

(xiii) that the respondents / defendants had failed to prove any

sanctioned plan but the same would not necessarily connote

damage to the property of the appellant / plaintiff;

(xiv) that the expert examined by the appellant / plaintiff was the son-

in-law of the appellant / plaintiff;

(xv) that though on account of relationship alone the testimony of the

expert could not be discarded but his testimony otherwise does not

inspire confidence and unequivocally conveys bias towards the

appellant / plaintiff;

(xvi) that the expert had even otherwise not given any conclusive

finding and had only guessed the reasons for damage to the

property of the appellant / plaintiff without carrying out any tests;

(xvii) that there was inconsistency in the case of the appellant / plaintiff

in the notice preceding the suit and in the evidence and an attempt

to improve the case was evident;

(xviii) That the photographs proved by the appellant / plaintiff showed

cracks only on the upper portion of the walls; if the cracks had

occurred due to caving in of the soil beneath the foundation walls

of the house of the appellant / plaintiff, certainly cracks would

have appeared on the floor or the lower portions of the walls;

absence of such cracks showed that the cracks on the upper

portions of the wall did not develop due to seepage of water from

the adjoining property;

(xix) that the appellant / plaintiff though was required to prove the

probable cause of cracks but had not done so;

(xx) though the appellant / plaintiff had instituted the suit herself and

not through her attorney but shied away from appearing in the

witness box;

(xxi) that the doctrine of res ipsa loquitur invoked by the counsel for

the appellant / plaintiff was not applicable because the cause of

the cracks had not been established;

(xxii) that though the appellant / plaintiff had also claimed that the

damage to her property was owing to sub-standard material used

by the respondents / defendants but the appellant / plaintiff had

failed to prove that also; and,

(xxiii) that when the appellant / plaintiff had failed to prove negligence

on failure of duty on the part of the respondents / defendants, the

question of award of damages did not arise.

9. The counsel for the appellant / plaintiff inter alia argued i) that the

learned ADJ erred in holding the suit claim to be barred by time; that the suit

was filed on 1st July, 2003 i.e. on the first day of opening of the Courts after

summer vacations; ii) that the respondent no.2, as a counterblast to the suit

from which this appeal arises, had also filed a suit for recovery of damages for

defamation against the appellant / plaintiff and which suit was also tried along

with the suit from which this appeal arises and was dismissed; iii) that the

learned ADJ has not considered the evidence led by PW3 Mr. Jayant Gandhi in

the suit for defamation; iv) that the question of the suit being barred by time

did not arise also because the damage to the property of the appellant / plaintiff

is of a continuous nature and covered by Section 22 of the Limitation Act and

extends the period of limitation of three years under Article 113 of the

Limitation Act; and, v) that the learned ADJ has not correctly appreciated the

evidence.

10. The counsel for the respondents / defendants merely supported the

judgment of the trial Court.

11. The affidavit by way of examination-in-chief of Mr. Jayant Gandhi and

his cross-examination which have been annexed by the counsel for the

appellant / plaintiff to the written submissions are not found on the trial court

record. Though a reading of the order sheet of the trial court does show that

the two suits, i.e. the suit from which this appeal arises and the suit aforesaid

filed by respondent/defendant no.1 against the appellant/plaintiff for recovery

of damages for defamation, were ordered to be tried by the same Court as

common questions arose in both and to avoid conflicting judgments but also

contains an order refusing to consolidate the two suits as Issues had been

separately framed in both the suits and evidence had also been separately

recorded though the two were being listed on the same date. In this scenario, it

is not understood as to on what basis the counsel for the appellant / plaintiff

wants this Court to read the evidence recorded in the other suit especially when

the appellant /plaintiff did not take any steps for having the said evidence

placed on record of the suit from which this appeal arises. Mention may also be

made of the fact that the appellant /plaintiff has not even bothered to place the

judgment in the other suit before this Court.

12. That brings me to the aspect of limitation. No specific Article of the

schedule to the Limitation Act is found to provide the period of limitation for

the suit of the present kind. Thus the residuary Article 113 which provides for

a limitation of three years commencing from the date when the right to sue

accrues would apply. It has been so held by the learned ADJ also and has not

been controverted by either of the counsels. The question which arises is as to

when right to sue would accrue.

13. The relationship between the parties is not contractual. It is also not the

case of the appellant/plaintiff that the respondents/defendants have violated any

law or omitted to do anything which he was by an enactment in force for the

time being required to do, resulting in loss/damage to the appellant/plaintiff.

The claim of the appellant/plaintiff is thus based on tort i.e. breach of duty

leading to damage. This duty is towards persons generally and its breach is

redressable by an action for damages. Supreme Court, in Jai Laxmi Salt

Works (P) Ltd. Vs. State of Gujarat (1994) 4 SCC 1 explained that the cause

of action to claim damages arises when the actual loss has taken place and

injury suffered and not the date when the negligence took place. This Court in

K.L. Juneja Vs. Bawa Dan Singh 1997 (40) DRJ 684, in the context of claim

for damages on account of personal injury suffered owing to construction

activity by the defendant, in the context of Article 113 held that sometimes

injuries are latent and their effect appears only after some time; in those cases

it cannot be said that the starting point of limitation should be the day when the

accident took place.

14. I have perused the pleadings and the evidence of the appellant / plaintiff

in this light.

15. The appellant / plaintiff, in the plaint, though in the substantive

paragraphs did not give any date and merely stated that during the construction

by the respondents / defendants of first floor damage was caused to the

property of the appellant / plaintiff which was initially got repaired by the

respondents / defendants and „after that‟ more cracks appeared but in the cause

of action paragraph pleaded that the cracks developed in October, 2000.

16. The son and attorney of the appellant / plaintiff in his affidavit by way of

examination-in-chief deposed that the cracks first developed in July, 2000;

however in cross examination he stated he could not remember the exact

month and the date when the first crack occurred and that he did not ask for

stoppage of construction work by the respondents / defendants when he first

noticed the crack but added that the cracks occurred when the construction

work was going on. Upon being asked when the construction commenced, he

stated that it was initially done in the year 1998-99 and subsequently carried

out in the year 2000.

17. The neighbour examined by the appellant / plaintiff also deposed of the

construction having taken place in the year 2000 and was not cross examined

on the aspect of limitation.

18. The expert and son-in-law of the appellant / plaintiff in his affidavit by

way of examination-in-chief did not depose about the date when the cracks had

developed and was not cross examined on the said aspect.

19. The respondents / defendants though in their written statement took the

plea of limitation but without any particulars and merely on the basis of the

averment in the plaint of digging having been done in the year 1998-99 and to

which the appellant / plaintiff in the plaint had attributed the cracks.

20. However, as I have already held hereinabove the date of commencement

of limitation would be the date of occurrence of loss/damage and not the date

of occurrence of the cause of loss/damage inasmuch as without the

loss/damage being known to the appellant / plaintiff, no cause of action would

accrue to the appellant / plaintiff.

21. The respondents / defendants in their evidence denied having dug up the

foundation of the plot and claimed having commenced construction on the

second floor only of the house and having sold the house with unfinished

second floor to Sh. Surrender Kumar Bansal on 5th June, 2000.

22. The learned Additional District Judge held the suit to be barred by time

without analysing when the right to sue would accrue and swayed by the

averments of the appellant/plaintiff of the cracks being attributable to the

respondents/defendants having left their plot of land dug up for long and which

digging up happened more than three years prior to the institution of the suit

and by the document of sale of 5th June, 2000 provided by

respondents/defendants and whereafter the respondents/defendants could not

have continued the construction. However, the said dates are irrelevant as

aforesaid. The relevant date is the date when cracks attributable to the

respondents/defendants appeared in the walls of property of appellant/plaintiff

and about which the respondents/defendants have not said anything whatsoever

inspite of the onus of the issue of limitation being on them.

23. In the factual scenario aforesaid I am unable to agree with the finding of

the learned ADJ of the suit claim being barred by time. It is the categorical

case of the appellant / plaintiff that the cracks occurred in the year 2000 and

without the respondents / defendants establishing that the cracks had appeared

more than three years prior to the institution of the suit i.e. prior to 1st July,

2000, the suit ought not to have been dismissed as barred by time.

24. That brings me to the more important question of whether any damage

has been caused to the property of the appellant / plaintiff and if so whether the

same is attributable to the respondents / defendants.

25. I find on the trial court record four photographs of walls having hairline

cracks thereon but visible to the naked eye. The respondents / defendants have

not challenged the said photographs being of the property of the appellant /

plaintiff. The same show cracks existing in the walls of the property of the

appellant / plaintiff. However, merely because cracks have appeared in the

property of the appellant / plaintiff does not mean that the construction by the

respondents / defendants on the adjoining plot is the cause thereof The cracks

can appear for diverse reasons and the doctrine of res ipsa loquitur has no

applicability thereto. In fact there is nothing to show that the cracks on the

walls visible in the photographs are not old i.e. of a date prior to

commencement of construction on plot No.323. No scientific test has been

conducted to determine the age thereof.

26. The expert examined by the appellant / plaintiff though son-in-law of the

appellant / plaintiff opined that the cracks had developed due to slip of soil

underneath the foundation of the property of the appellant / plaintiff and that it

seemed that at the time of construction of adjoining property No.323 while

excavating the foundation, water may have flown underneath the property of

the appellant / plaintiff resulting in slippage of soil underneath the foundation

thereof. In his cross examination, he stated that the cracks varied from

negligible to 2mm to 5mm width though it was not so stated in his report and

that he inspected the property on 21st December, 2000 when some portion of

adjacent property No.323 was still lying dug up; however the next moment he

changed his statement and stated that no part of the property was dug up at that

time. In reply to the question whether the cracks could be attributable to

earthquakes, which he admitted to have occurred since the construction of the

property, he stated that if it had been so, there would have been cracks on the

other side of the property abutting property No.325.

27. I am of the opinion that the said expert of the appellant / plaintiff has not

been able to prove that the cause of the cracks was attributable to the

construction on the adjoining property. All that he deposed was that the cracks

were attributable to the respondents / defendants because of seepage of water

underneath the foundation of the property of the appellant / plaintiff from the

excavation carried out by the respondents / defendants for construction of their

property. However if that were to be so, then that would mean that digging of

foundation for every construction would cause damage to the adjoining

property and which is not the case. I also find it strange that though the expert

was the son-in-law of the appellant / plaintiff but he claims to have been called

in only on 21st December, 2000 when according to the appellant / plaintiff

cracks had occurred in the first half of the year 2000. It is unbelievable that if

any damage was being caused to the property of the appellant / plaintiff while

construction of the adjoining property was going on, she would not have

immediately gotten it examined from her son-in-law as she ultimately did and

would not have immediately taken steps to restrain the respondents /

defendants from causing any further damage to her property.

28. I have also perused the evidence of the son and attorney of the appellant

/ plaintiff and of the neighbour examined by the appellant /plaintiff and in their

testimonies also did not find the appellant /plaintiff to have proved that the

cracks in her property were attributable to the respondents / defendants.

29. I therefore tend to agree with the reading of the evidence in this regard

by the learned ADJ and the learned ADJ in his judgment having dealt

exhaustively with the testimonies, do not feel the need to reiterate the same.

30. For the appellant / plaintiff to succeed in her claim for compensation for

damage caused to her property, she was required to prove that the damage was

attributable to something which the respondents / defendants ought to have

done and had not done or to something which the respondents / defendants

ought not to have been but had done. Without the appellant / plaintiff proving

that, even if the damage occurred to the property of the appellant/plaintiff

during construction raised by the respondents / defendants on adjoining plot of

land, the plaintiff would have no claim for compensation against the

respondents / defendants. It cannot be lost sight of that the lay out plan

sanctioned by the authorities of new colonies invariably provides for small size

plots and the building bye-laws do not require any buffer / set back between

the constructions of two houses. It cannot also be lost sight of that owners of

adjoining plots of lands are not compelled to raise construction at the same

time and one is bound to construct after the other. If in such situation, if

inspite of due care having been taken, damage occurs to the adjoining property

owing to the necessity of digging along the foundation of already built up

adjacent house, the same will not give rise to a claim for compensation. Such

damage, after all can also be attributable to defects/faults in own construction,

of not foreseeing impact of construction in future on adjoining plots and

safeguarding against any damage therefrom.

31. I therefore find the appellant / plaintiff to have failed to prove her case

and no error can be found with the judgment of the learned ADJ of dismissal of

the suit of the appellant / plaintiff.

32. Resultantly, the appeal is dismissed. However I refrain from imposing

costs.

Decree sheet be drawn.

RAJIV SAHAI ENDLAW, J.

             th,
APRIL 19           2016
„gsr‟