Ram Rani Dhingra v. Virender Bhatia & Ors

judgment of the trial Court.

¶11The 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.

¶12That 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.

¶13The 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.

¶14I have perused the pleadings and the evidence of the appellant / plaintiff in this light.

¶15The 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.

¶16The 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.

¶17The 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.

¶18The 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.

¶19The 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.

¶20However, 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.

¶21The 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.

¶22The 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.

¶23In 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.

¶24That 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.

¶25I 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.

¶26The 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.

¶27I 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.

¶28I 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.

¶29I 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.

¶30For 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.

¶31I 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.

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

Decree sheet be drawn.

RAJIV SAHAI ENDLAW, J. APRIL 19th, 2016 "gsr"

*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 appella