Sh. Arun Kumar vs Sh.

Gagan Gosai on 27 April, 2016

Delhi District Court

Sh. Arun Kumar vs Sh. Gagan Gosai on 27 April, 2016
Author: Sandeep Gupta
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IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE, DELHI

(WEST)−02

SUIT NO.361/14

Unique Case ID No − 02401C0314152013

Sh. Arun Kumar

S/o Sh. Prem Prakash,

R/o WZ−51A, Om Vihar,

Phase−II, Uttam Nagar,

Delhi − 110059

..........................PLAINTIFF

VERSUS

Sh. Gagan Gosai

S/o Not Known,

R/o WZ−50, Om Vihar,

Phase−II, Uttam Nagar,

Delhi − 110059

.....................DEFENDANT

Suit filed on - 01/07/2013

Judgment Reserved on - 27/04/2016

Date of decision - 27/04/2016

SUIT FOR MANDATORY INJUNCTION AND DAMAGES

Suit No.361/14 Page−1/8

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 Sh. Arun Kumar vs Sh. Gagan Gosai on 27 April, 2016

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EX−PARTE JUDGMENT:−

By this judgment I shall dispose off a suit for permanent mandatory

injunction and damages filed by the plaintiff against the defendant. Befo

adjudicating upon the issues framed in the present suit, I feel it necessary to dwell

upon the plethora of pleadings in the present suit.

Pleadings of the plaintiff :−

1.

The brief facts of the case as per the plaint are that the plaintiff is the owner of single storey built up
house bearing No.WZ−51A, Om Vihar, Phase−II, Uttam Nagar, Delhi−110059, measuring 50sq. Yds.
and residing therein for the last many years with his family.

It is further the case of the plaintiff that defendant is his neighbour having his house adjacent to that
of the plaintiff and defendant is the owner of built up house bearing No.WZ−50, Om Vihar,
Phase−II, Uttam Nagar, Delhi−59 measuring 45 sq. yds.

It is further the case of the plaintiff that defendant has constructed the aforesaid house
approximately two and a half years earlier and constructed toilet, bath and kitchen alongwith the
wall of the house of the plaintiff but has not constructed the proper drainage and sewage system
because of which leakage started. It is further the case of the plaintiff that because of said leakage
and improper drainage the pipe lines are not working properly which is causing seepage in the half
wall and floor of the Verandah and room of house of the plaintiff.

It is further the case of the plaintiff that because of said seepage, damage has been caused to the wall
and floor which is also causing foul smell Suit No.361/14 Page−2/8 − 3 − making it impossible to
live for the family of the plaintiff. That the atmosphere has become unhygienic and the wife of the
plaintiff has already got a heart surgery.

It is further the case of the plaintiff that he lodged a complaint on 07/05/13 with the concerned
Police Station and with the Officials of MCD as well. It is further averred that despite making
request to the defendant to repair the drainage system, the defendant threatened him not to come
again. Hence, the plaintiff has filed the present suit praying for relief of mandatory injunction
thereby directing the defendant to repair the drainage system and pipe lines to stop the seepage and
for award of damages to the tune of Rs.1Lakh. Pleadings of Defendant :−

2. It is noteworthy that WS was filed from the side of the defendant in which it was mentioned that
the plaintiff has intentionally covered the drain due to which the walls of many houses were

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 Sh. Arun Kumar vs Sh. Gagan Gosai on 27 April, 2016

damaged and also denied about having done any construction in his house as averred by the
plaintiff. It was significantly denied that there was any leakage from the house of the defendant
which has caused seepage in the house of the plaintiff.

In reply on merits, the defendants has denied all the averments made in the plaint as false and
frivolous and it has been prayed that the suit be dismissed with costs.

3. Replication has been filed on behalf of plaintiff to the WS of defendant wherein all the averments
made in the WS were denied as false and frivolous and those made in the plaint were reiterated and
reaffirmed.

Suit No.361/14
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Issues :−

4. From the pleadings of the parties the following issues were framed on 09/05/2014 :−

1. Whether the suit is entitled to the relief of mandatory injunction as prayed for in prayer clause−A
of the plaint? OPP

2. Whether the plaintiff is entitled to the relief of damages as prayed for in prayer clause−B of the
plaint? OPP

3. Whether the suit is bad for non−joinder of necessary parties? OPD

4. Relief.

Plaintiff's evidence :−

5. In support of his case, plaintiff got examined three PWs. Plaintiff examined himself as PW−1 and
his wife Smt. Rajni as PW−2 and they reiterated the contents of the plaint on oath and relied upon
certain documents which are as follows :− PW−1 relied upon the following documents :− Site plan is
Ext. PW−1/1. Copy of the identity proofs of the plaintiff are Mark−A and Ext. PW−1/3. The
photographs are Ext. PW−1/4 (Colly). The copy of police complaint dt.07/05/13 is Ext. PW−1/5.
Copy of the complaint dt. 05/06/13 given to MCD are Ext. PW−1/6 and PW−1/7.

PW−2 relief upon the following documents :− The copy of ID Card is Ext. PW−2/1. Copies of the
medical documents of plaintiff no.2 are Ext. PW−2/2 (Colly).

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 Sh. Arun Kumar vs Sh. Gagan Gosai on 27 April, 2016

Plaintiff has also got examined Sh. Naresh Kumar, Architect/Building Supervisor as PW−3 who was
engaged by plaintiff himself for inspection of his property i.e. the suit property and his report is Ext.
PW−3/1.

It is a matter of record that the defendant stopped appearing in the present suit after framing of
issues and, therefore he was proceeded with ex−parte vide order dt.03/12/14.

6. Final arguments have been heard. Record has been carefully perused. Now, I shall give my
issue−wise findings which are as under :− Issue no.1 & 2 shall be dealt first and together.

7. ISSUE NO.1 & 2 − Whether the suit is entitled to the relief of mandatory injunction as prayed for
in prayer clause−A of the plaint? OPP Whether the plaintiff is entitled to the relief of damages as
prayed for in prayer clause−B of the plaint? OPP To prove both these issues it was incumbent upon
the plaintiff to specifically show that the seepage in the wall and floor of the Verandaah and room of
the house of plaintiff occurred because of the improper drainage and sewage system in the adjacent
house of the defendant. It is noteworthy that there is no evidence on record firstly to show that there
was some construction undertaken by the defendant adjacent to the wall of the house of plaintiff as
according to the plaintiff around two and a half years prior to the institution of this suit, the
defendant had constructed some toilet, bathroom and kitchen because of which the leakage started.
The plaintiff never examined any Suit No.361/14 Page−5/8 − 6 − independent witness to even
remotely corroborate about the facts of any such constructions having being undertaken by the
defendant. There is no witness examined to prove that there was leakage in the drainage or in the
sewage system which is coming from the house of defendant. The only independent witness
examined is PW−3 who was appointed by plaintiff himself to inspect the suit premises and this
witness only testified that there is heavy seepage in the wall of subject property which has caused
damage to the wall and floor of the room and Varandha. But it nowhere discloses that whether any
detailed inspection was carried out as to which pipes in the drainage system were actually causing
the leakage or was there any sewage system installed at all near the suit property or not? Perusal of
the report Ext. PW−3/1 further shows that it was the plaintiff himself upon whose information
PW−3 relied and reported that in the adjacent property, a kitchen, latrine and bathroom are
constructed alongside the damaged wall of suit property. But no evidence was adduced by the
plaintiff to even show that there is one kitchen, latrine and bathroom constructed alongside the
damaged wall. The report straightaway mentions about the opinion that there is leakage in the
sanitary and water fittings installed in the kitchen, latrine and bathroom of the adjoining property
without doing any inspection whatsoever to enquire as to from exactly and which pipes, the leakage
of water is occurring and how it can be deduced that drainage of the adjoining property is improper.

Merely placing on record some photographs would at the most reflect that there is some seepage
and damage in the walls. But the reason for the same cannot be imputed upon the improper
drainage or sewage system of the adjoining property without adducing any cogent evidence in
support of that averment.

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 Sh. Arun Kumar vs Sh. Gagan Gosai on 27 April, 2016

As far as second issue of claim of damages is concerned there is absolutely no evidence whatsoever
led on this issue. There are no estimates given by any expert with the specific details as to how the
plaintiff is claiming damages to the tune of Rs.1Lakh. Moreover, once the plaintiff has failed to prove
that the defendant was responsible for the damage and seepage done in the property of plaintiff,
hence, there is no question of grant of any damages as well.

It is a settled law that even if a suit proceeds ex−parte, the necessity of proof by the plaintiff of his
case to the satisfaction of the court cannot be dispensed with. The trial court would scrutinize the
available pleadings and documents, consider the evidence adduced and proceed to construct the
ex−parte judgment dealing with the points at issue one by one. Merely, because the defendant is
absent, the court shall not admit evidence the admissibility whereof is excluded by law nor permit its
decision being influenced by irrelevant or inadmissible evidence. (Ramesh Chand V/s Anil
Panjwani, AIR 2003 SC 2508).

Accordingly, in view of the aforesaid discussion the issue no.1 & 2 are decided against the plaintiff.

8. ISSUE NO.3 − Whether the suit is bad for non−joinder of necessary parties? OPD The onus to
prove this issue was upon the defendant. There has been no evidence led whatsoever from the side
of defendant to prove this issue. And in the absence of any evidence adduced on this issue, this issue
is decided against the defendant.

Suit No.361/14 P
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9. ISSUE NO.4 RELIEF - In view of the findings given on issues no.1 to 3, documents placed on
record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his
case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed.

Decree sheet be prepared accordingly. File be consigned to record room after completing the
necessary formalities.

(SANDEEP GUPTA) Civil Judge, Delhi (West)−02 Announced in the open court on 27/04/2016.

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