RAM RANI DHINGRA Vs. VIRENDER BHATIA AND ORS.

JUDGEMENT

(1.) This first appeal under Sec. 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.