Kamlesh Bhattacharya vs P.L. Khera & Ors.
2017 Latest Caselaw 769 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                         Date of Decision: February 10, 2017

+                                   RSA 51/2017

        KAMLESH BHATTACHARYA                        ..... Appellant
                    Through: Mr.Anil Kumar Singh & Mr.Om
                             Prakash Singh, Advocates.
                                       versus
        P.L. KHERA & ORS.                                        ..... Respondent
                       Through:           None.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)

CM No.5263/2017

1. Exemption allowed subject to all just exceptions.

2. Application is disposed of.

CM No.5264/2017

1. For the reasons stated in the application the delay of 10 days in re-filing the appeal is condoned.

2. The application is disposed of.

RSA 51/2017

1. This Regular Second Appeal has been preferred by the appellant/plaintiff impugning the judgment and decree dated 7 th September, 2016 of the First Appellate Court in RCA No.60951/2016.

2. This appeal was preferred by the appellant impugning the decision of the learned Trial Court in Civil Suit No.114/2010 decided on 17th September, 2015.

3. Civil Suit No.114/2010 was filed by the appellant Smt.Kamlesh impleading Sh.P.L.Khera as the defendant, pleading as under:

(i) The plaintiff was occupying the First floor of the property bearing Flat No.3013/15, Gali No.19, Ranjeeet Nagar, New Delhi whereas the defendant was occupying the Second Floor of the said property.

(ii) The plaintiff was facing problem of seepage in her floor which according to her was due to improper use of washing machine by the defendant. Her oral requests to the defendant to rectify the defect so that seepage can be stopped, remained unheeded by him.

(iii) Legal notice dated 7th May, 2010 was served by her on the defendant which was also not complied with. Hence she filed a suit.

4. Since the defendant Sh.P.L.Khera failed to appear despite service, he was proceeded ex-parte. However, learned Trial Court by its judgment dated 17th December, 2011 dismissed the suit. The appellant preferred the appeal No.01/2012 which was disposed of vide order dated 13 th March, 2012 remanding the case to the learned Trial Court with direction to appoint Civil Engineer or Expert from any Government department like PWD/MCD as a Local Commissioner and decide the matter afresh.

5. During pendency of the suit before the learned Trial Court, defendant Sh.P.L.Khera sold the same to Smt.Shakuntla Sharma and Smt.Rupali Sharma on 19th January, 2013. Thereafter both of them were also impleaded as defendants No.2 & 3 in the Civil Suit.

6. Vide judgment and decree dated 17th September, 2015, learned Trial Court directed defendants No.2 & 3 to allow the plaintiff to repair the source of seepage and ensure that in future no seepage originates once it is repaired. It was also held that since the seepage was in existence prior to the property being purchased by defendants No.2 & 3, they cannot be attributed with any

negligence. On the question of awarding damages, learned Trial Court was of the view that rather than awarding the speculative damages it would be in the interest of justice to award actual cost of repair which shall be borne by defendant No.1 on actual basis. Learned Trial Court awarded `20,000 towards damages for causing mental harassment to the appellant/plaintiff observing that both are senior citizens and have converted a small issue into a battle of egos as is visible from the counter allegations and number of complaints filed by the parties.

7. The First Appellate Court vide impugned judgment concurred with the finding of the learned Trial Court that defendants No.2 & 3 cannot be held liable to pay damages to the appellant/plaintiff. The First Appellate Court modified the order of the learned Trial Court granting the relief as under:

"34. In view of the above discussion, the appeal filed by the appellant/plaintiff against the impugned judgment and decree dated 17.09.2015 passed by the Ld. Trial Court is partly allowed. The judgment and decree of the Ld. Trial Court is modified as under:

i) A decree for recovery of `56,000/- towards the cost of the repairs is passed in favour of the appellant and against respondent/defendant no.1.

ii) A decree for recovery of `68,000/- is passed in favour of the appellant/plaintiff and against respondent/defendant no.1 for the mental harassment and agony.

iii) The appellant/plaintiff is entitled for cost of the proceedings from respondent no.1.

8. The appellant/plaintiff was again not satisfied with the leave granted by the First Appellate Court hence she invoked the jurisdiction of this Court under Section 100 CPC making the following prayer:

'It is, therefore, respectfully prayed that the Hon'ble Court may be pleased to modify the judgment and decree dated 7.9.2016 in

RCA No.64951/2016 titled "Kamlesh Bhattacharya vs. P.L.Khera & Others"

(i) By awarding the monetary compensation to the appellant for mental harassment as per her claim of ₹15,50,000/-.

(ii) Modify the impugned judgment and decree dated 7.9.2016 to the extent by enhancing, the estimated cost of ₹2,50,000/- for repairing to the building of the appellant due to damage caused by seepage/leakage.

(iii) Modify the impugned judgment and decree dated 7.9.2016 to the extent that the respondents No.2 and 3 are also liable to pay the repair cost to the appellant's property, due to damage occurred by leakage and seepage.

(iv) Modify the impugned judgment and decree dated 7.9.2016 to the extent that the respondents No.2 and 3 are also liable to pay the monetary compensation to the appellant for mental harassment, agony and discomfort.

(v) Modify the impugned judgment and decree dated 7.9.2016 to the extent that the respondents are jointly, severally and vicariously liable to pay for the damages caused as well as monetary compensation to the appellant.

(vi) Modify the impugned judgment and decree dated 7.9.2016 to the extent that the respondents No.2 and 3 are also liable to pay for the damage caused as well as monetary compensation for mental harassment instead of respondent No.1 as he is not traceable and is absconding.

(vii) The Hon'ble Court may pleased to restrain the respondents No.2 and 3 from selling their property during the pendency of appeal and until the time the respondents No.2 and 3 have made full payment to the appellant failing which the decree would become fruitless and the appellant will have to bear irreparable loss.'

9. Learned counsel for the appellant has been requested to address the Court on the substantial question of law raised in this case.

10. Mr.Anil Kumar Singh and Mr.Om Prakash Singh, Advocates for the appellant as well the appellant who is present in person made the submission invoking the doctrine of lis pendence and liability of defendants No.2 & 3 to compensate the appellant. On perusal of the record it is revealed that to prove the cause of seepage the appellant/plaintiff examined Civil Engineer, Sh.Suresh Kumar as PW2. He inspected the site on 20 th October, 2010, 13th September, 2012 & 7th November, 2013 and given his report Ex.PW2/B, PW2/C & PW2/D for each inspection. In addition he also filed some photographs, Ex.PW2/E. During the third visit on 7 th November, 2013 PW2 he noticed a concrete slab in broken condition exposing the waste water pipe.

11. Sh.Chaman Lal, Assistant Engineer, MCD was examined as DW2, as he inspected the property pursuant to the direction by the Court. As per his report cause of seepage was due to drilling work carried out by the appellant/plaintiff. DW2 during his cross-examination did not dispute cause of seepage due to broken concrete slab on the second floor.

12. Learned Trial Court was of the view that irrespective of the fact that whether the concrete slab was broken to carry out the repairs or otherwise, it could not have been left unrepaired, which was construed as negligence on the part of the defendant No.1. Defendants No.2 & 3 were not held liable for the act of negligence of defendant No.1 hence not burdened with any damages. However, defendants No.2 & 3 were directed to allow the plaintiff to have complete access to the affected portion at all reasonable times for the purpose of carrying out the necessary repairs.

13. The First Appellate Court concurred with the finding that defendants No.2 & 3 were not liable to pay any damages.

14. The grievance of the appellant that the property was purchased by defendants No.2 & 3 in January, 2013 when the litigation between the plaintiff and the owner/vendor Sh.P.L. Khera of the flat on the second floor was pending. It has been contended that the property was not free from encumbrances at that time as litigation in respect of that flat was still pending. Since defendants No.2 & 3 have purchased the property during pendency of litigation, they are equally liable to compensate the appellant/plaintiff for mental harassment & agony suffered by her and pay the cost of litigation as well the cost of repair.

15. Both the Courts below have given reasons for not fastening any liability on respondents No.2 and 3 (defendants No.2 and 3) to pay damages to the appellant/plaintiff. When it is admitted case of the parties that the seepage problem from second floor to first floor existed years before the said property was purchased by respondents No.2 and 3 in January, 2013, they cannot be held responsible for causing any seepage as admittedly it pre-existed. The doctrine of lis pendence has no application in this case as pendency of a suit between the owners/occupiers of the second floor in connection with the seepage problem does not amount to the property on second floor not being free from encumbrances for purpose of transfer of title. Similarly there was no legal bar to sell or purchased the property merely because the appellant/plaintiff was litigating with the owner of the second floor for causing seepage to the first floor.

16. The negligence was attributed only to Sh.P.L.Khera, who was the sole defendant in the suit. Subsequently defendants No.2 & 3 have been impleaded on just for the reason that they have purchased the property and not for any act attributed to them which resulted in seepage to the floor of the appellant/plaintiff.

17. Thus, both the Courts below by their concurrent judgment have rightly come to the conclusion that respondents No.2 and 3 (defendant No.2 and 3 cannot be held liable to pay any damages or to put any restriction in respect of use of the property purchased by them.

18. It is a settled law that in second appeal, the High Court cannot set aside the concurrent finding of facts given by the Courts below. A second appeal can be entertained only if the appeal raises a substantial question of law.

19. In second appeal filed under Section 100 of the Code of Civil Procedure, jurisdiction of this Court is confined only to such appeals which involve a substantial question of law and not to entertain any appeal or interfere with the concurrent finding of facts of the Courts below on pure question of fact.

20. The instant appeal does not involve any substantial question of law. The quantum of damages which was not quantified by the learned Trial Court, have been quantified by the First Appellate Court giving reasons for assessing the amount towards repair purpose as well on account of mental agony and sufferings.

21. In view of the above, since this Regular Second Appeal does not involve any substantial question of law, the same is hereby dismissed.

22. No costs.

CM No.5262/2017 (Stay) Dismissed as infructuous.

PRATIBHA RANI (JUDGE) FEBRUARY 10, 2017/'hkaur'