Order 4

Order Details: COPY OF ORDER
Pdf Text: CS 215/24
RAVINDER KUMAR Vs. GOVERNMENT OF NCT OF
DELHI
29.04.2025
Present: Sh. J.P. Bansal, Ld. Counsel for plaintiff.
Sh. Deepak Agarwal, Ld. Counsel for D-2.
Ms. Anuja Pethia, Sh. Srikant Singh, Ld. Counsel for D-3
(EIL) with Ms. Kritika Bodhi, Deputy Manager (Legal).
Ld. Counsel for D-4 through V.C.
1. Arguments on application of D-4 U/S 151 CPC (which is
treated as one filed under Order VIII Rule 1 CPC on the oral
request of Counsel for D-4) heard.
2. After some arguments, Counsel for plaintiff submits that delay
in filing of written statement of D-4 be condoned subject to
cost.
3. Considering the grounds stated in the application and the
concession given by the Counsel for plaintiff, the delay in filing
of written statement of D-4 is condoned subject to cost of Rs.
10,000/- to be paid to plaintiff. Cost not paid.
4. Application is disposed off.
5. None appears for D-5 (who is arrayed as ADM North-East) to
argue his application seeking deletion from the array of parties
under Order I Rule 10 CPC. It is pertinent to note that in the
header of the said application, instead of identifying himself as
D-5, ADM concerned has filed the application as D-6 (under the
signatures of Tehsildar North-East).
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6. I am not inclined to wait for D-5 to appear and address
arguments on the said application. I proceed to decide the said
application on merits.
7. It is the case of the applicant that D-5 had no role to play in the
work done by other defendants which led to some damage to
their house/property and qua which plaintiff has sued the other
defendants for damages.
8. Counsel for plaintiff opposes the application on the ground that
certain orders were passed by the concerned ADM which led to
resumption of work in the area which eventually caused damage
to the property of plaintiff and hence he is liable to be sued in
this case.
9. In the present suit, plaintiff has sued the defendants on the
ground that D-2/DJB in collaboration with D-3 and D-4 had
carried out work of laying pipe lines in Village Gokul Pur and
in doing so, no survey or risk assessment or prescribed
precautions were taken which led to forming of sink holes in the
area damaging the property of the plaintiff. Thus, plaintiff has
sued the defendants seeking damages of Rs. 45 lac from the
defendants.
10.It is pertinent to note that plaintiff has already made
Government of NCT of Delhi a party to this suit and the same is
arrayed as D-1. Now once the Government of NCT of Delhi is
itself a party to this suit, there is no need to make ADM (who
works for Government of NCT of Delhi) as a separate party to
this suit. Even DJB is D-2 in this suit while the other defendants
i.e. D-3 and D-4 are parties who purportedly carried out the
work in the area leading to damage to plaintiff’s property.
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11.In other words, D-1 to D-4 (who are necessary parties to this
suit) are already parties before this Court. Thus, in my humble
opinion, D-5 is neither necessary nor proper party to this suit
and thus, he is ordered to be deleted from the array of parties.
12.Application of D-5 is thus allowed in the aforesaid terms. D-5 is
deleted from the array of parties.
13. Arguments on two other applications moved by D-2 and D-3
U/O VII Rule 11 CPC heard.
14.Both the applications are premised on the ground that the suit of
the plaintiff is barred by time.
15.It is the case of both the applicants that evidently the present
suit has been filed on 18.05.2024 (as per the applicants), while
damage to the house of plaintiff (which being the cause of
action to sue the defendants for damages) occurred on or about
20.08.2017 and 21.08.2017. It is argued that since Delhi Jal
Board (DJB)/D-2 is a statutory authority and DJB was carrying
out the work in question (of getting sever lines laid which led to
damage to plaintiff’s property) in pursuance to its statutory
obligations, Article 72 of Limitation Act shall govern the case in
hand and if the period of limitation provided therein is taken to
be one year, limitation in this case expired on or about
21.08.2018. Thus, as per both the applicants, the present suit is
barred by time.
16.It was further argued that even if it is taken that the present suit
is not governed under Article 72 of Limitation Act 1963 and
Article 113 (which is a residuary Article for suits under the
Limitation Act 1963) is applied and it is taken that the period of
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limitation in this case would be 3 years, still, the limitation in
this case would expire on or about 21.08.2020 and therefore, the
present suit is barred by time.
17.It was further argued on behalf of both the applicants that
plaintiff has claimed that certain emails/communications were
addressed by answering defendants and plaintiff has annexed
the same with the plaint. They argued that even if the said
documents/communications are considered by this Court, still,
in law, the period for limitation cannot be extended to bring the
present suit within limitation and thus, both the applicants has
prayed for rejection of the plaint U/O VII Rule 11 (d) CPC.
18.On the other hand, Counsel for the plaintiff argued that plaintiff
has placed on record various documents including certain
minutes of meeting dated 08.03.2019 (which as per Counsel for
plaintiff are of a committee formed to assess the loss to the
houses of various residents of Vill. Gokalpur and was headed by
officials of DJB/D-2) wherein an amount of Rs. 9.3 lac was
offered to the plaintiff. This as per Counsel for plaintiff would
amount to an acknowledgment of liability by the defendants and
this would, as per plaintiff, extend the limitation period of 3
years w.e.f 08.03.2019.
19.He further argued that thereafter due to Corona pandemic,
plaintiff could not approach the Court and he would be entitled
to benefit of order passed by Hon’ble Supreme Court of India in
the matter of ‘In Re-Cognizance for Extension of Limitation”
[(2022) 3 SCC 117]. As per Counsel for plaintiff this period
shall be between 15.03.2020 to 28.02.2022. It was argued that if
one calculates a fresh period of limitation w.e.f 08.03.2019, the
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said period of 3 years would have expired on 08.03.2022 and if
the benefit of the judgment of Hon’ble Supreme Court of India
in the aforesaid case is given to the plaintiff, the said period
shall be excluded from the computation of limitation and
thereafter the limitation would have expired or or about
21.02.2024.
20.It was further argued that plaintiff has also placed on record an
internal email exchanged between officials of D-3 dated
25.07.2022 which again would amount to an acknowledgment
of liability qua the right claimed by the plaintiff and thus, a
fresh period of limitation shall have to be computed from the
said date and if that be the case and a further period of 3 years is
computed from the said date, the limitation would expire on
25.07.2025. As per plaintiff, since plaintiff filed the present
suit on 10.07.2024 (and not on 18.05.2024 as claimed by the
answering defendants), plaint is within time. Thus, he prayed
for dismissal of the aforesaid applications.
21.In rebuttal, Counsel for the applicants disputed the manner in
which plaintiff wants to read the documents filed by him. They
claim that the said documents cannot be read to mean an
admission of liability and thus, there is no question of extension
of period of limitation in the manner argued before this Court.
22.I have given thoughtful consideration to the rival arguments of
the parties and have gone through the record.
23.At the outset, I may note that usually, limitation is a mixed
question of law and fact. In this case also, the same appears to
be the scenario in as much as the plaintiff is relying upon
various communications/minutes of meetings which as per him
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shall make him entitled to benefit of Section 18 of Limitation
Act, 1963. The said documents shall require to be proved on
record for which evidence shall be necessary and thus, the
answer to the point of limitation being raised by the applicants
is not straight forward and is essentially a mixed question of
law and fact.
24. Still, if I consider the arguments made before this Court, it is to
be noted that plaintiff has come before this Court asserting his
right to receive damages for the loss caused to his house
because of the work caused to be done by DJB/D-2 through D-3
and D-4. He has made specific allegations in the plaint qua the
applicants in para 4 to 6 of his plaint which read as under:-
“4.
That it has also come to the knowledge of plaintiff that
Delhi Jal Board entered into a contact/arrangement with
Engineers India Ltd./defendant no. 3 for the work of
laying pipelines in Village Gokulpur, and in pursuance
to the said contract Engineers India Ltd further
collaborated with DSCL Fengshum Wabag Consortium
for laying the above mentioned pipes in village
Gokulpur, however apparently the same activity was
being carried by them without any survey or risk
assessment, even without adopting the prescribed
precaution to be used during the course of laying of
pipe line in the village that was admittedly a negligent
on the part of all the defendants.
5. That despite the objections by the residents of village
Gokulpur including plaintiff the officials of EIL and
DSCL – Fengshun Wabag carried the above said
activity of laying sewer pipes in the village Gokulpur
for two days i.e. on 20.08.2017 and 21.08.2017.
6. That the outcome of the actions of EIL and DSCL
Fengshun Wabag was that the house/properties in the
said area village Gokulpur including the said property
of plaintiff became inhabitable and dangerous as due to
the acts of EIL and DSCL Fengshun Wabag, sinkholes
were formed making the buildings sink and crakes has
been occurred all over the walls thereby causing
extremely bad conditions and risk for the residents of
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village Gokulpur including plaintiff, who’s property has
been badly damaged.”
25.A bare perusal of the aforesaid paras would show that plaintiff
has set up a case that due to negligent act on the part of D-2 to
D-4, his house was damaged and thus, he is entitled to receive
compensation because of the loss suffered by him. Thus, he is
asserting a right to receive damage from the defendants on the
ground that his house was made inhabitable by the defendants.
The argument made before this Court on behalf of plaintiff is
that when the defendants offered him or acknowledged that they
agreed to pay some money to him, it would mean that they are
admitting/acknowledging his right to receive damage and this
would mean an admission of liability by the defendants making
him entitled to the benefit of Section 18 of Limitation Act 1963.
26.Plaintiff has placed on record minutes of meeting dated
18.03.2019 (which admittedly are the minutes of meeting inter
alia done for assessing the loss suffered on account of damage
caused to houses of residents of Village Gokulpur which
included the house of plaintiff) as per which D-3 had offered a
sum of Rs. 9.3 lac to plaintiff, which was refused by him.
27.In my humble opinion, if the said document is taken on its face
value, only for the purposes of deciding the present application,
it would mean that in effect the said committee (of which
officials of D-2 and D-3 were members) acknowledged the fact
that there was some damage to the house of the plaintiff which
would therefore give him a right to sue the defendants for
compensation. Now if the said minutes of meeting amounts to a
an acknowledgment of liability qua the right of the plaintiff,
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Under Section 18 of Limitation Act, 1963, a fresh period of
limitation of 3 years would begin to run in favour of plaintiff.
28.I may hasten to add that the argument raised by defendants qua
applicability of Article 72 of Limitation Act 1963 (which
provides for limitation for one year only) is not applicable to the
facts of this case for the simple reason that D-4 is a private
entity and D-4 cannot be said to have carried out the work in
question in pursuance to any enactment.
29.Even D-3 is not an entity which came into being in pursuance
of any enactment. At least no such enactment has been brought
to my notice for and on behalf of D-3 and thus, benefit of
Article 72 of Limitation Act cannot be made applicable qua D-3
and D-4.
30.Again, it is the specific case of plaintiff that officials of D-2 had
acted negligently in breach of their official duties and thus,
whether D-2 acted in pursuance to the authority given to them
under the relevant Act (under which DJB came into being) or
otherwise, it shall be a matter of trial and thus, in my humble
opinion, at least at this stage, it does not appear to this Court
that Article 72 of Limitation Act shall apply to the facts of the
case.
31.Even otherwise, once it is taken that D-3 and D-4 are not
covered under Article 72 of Limitation Act, 1963 the entire case
shall thereafter have to be governed under Article 113 of
Limitation Act, 1963 (which provides for a period of 3 years for
limitation) as out of the two Articles noted above, Article 113
provides for a longer period of limitation and with the question
of limitation being a mixed question of law and fact, atleast at
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this stage, Article 113 shall have to be treated to the one
governing the period of limitation for the present suit.
32.Now, if under Section 18 of Limitation Act 1963 a fresh period
of limitation began to run on 08.03.2019, it would mean that the
same would expire after 3 years, on or about 08.03.2022. Now,
the period of 15.03.2020 to 28.02.2022 shall have to be
excluded from the period of limitation in view of the judgment
of Hon’ble Supreme Court of India (supra) and that would take
the limitation to expire on or about 21.02.2024.
33.But, as per documents placed on record by plaintiff, in between,
it appears that an internal email was exchanged between the
officials of D-3/EIL dated 25.07.2022 wherein it is mentioned
that an offer of Rs. 9.3 lac was made to plaintiff as final
settlement and the same “was in line with the recommendation
of committee members comprising DJB & EIL officials”.
Header of the said email reads “Letter related to compensation
of houses damaged by Delhi Jal Board during laying of
interceptor sewer line”. Header of the said email further shows
that the officials of D-2 had acknowledged the fact that there
was damage caused to the various houses including that of
plaintiff, by DJB during laying of sever lines. This was on
25.07.2022.
34.Now once officials of EIL/D-2 acknowledged the said damage,
in effect they acknowledged the right of plaintiff to sue them
and therefore, a fresh period of limitation shall have to be
calculated from 25.07.2022. Now if 3 years limitation began to
run on 25.07.2022, the limitation would have expired on or
about 25.07.2025.
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35.As already noted, the present suit has been filed on 10.07.2024
and therefore, in my humble opinion, it cannot be said the suit
of the plaintiff is beyond limitation.
36.Considering the above, in my humble opinion, both the
applications of D-2 and D-3 on the point of limitation are
misconceived and accordingly dismissed.
37.I may note that the issue as to whether the plaintiff has been
able to prove the aforesaid documents on record is still open to
be decided at the stage of trial and thus, in other words, nothing
stated herein should be treated as a finding of fact on the point
of limitation and the parties shall be at liberty to prove the issue
of limitation during trial by leading cogent evidence.
38.Since, while deciding the application U/O VII Rule 11 CPC,
only the plaint with documents are to be read and the averments
made therein are being treated as gospel truth, the aforesaid
applications have been decided by treating the documents and
the pleadings of the plaintiff as gospel truth and not otherwise.
39.At this stage, it is pointed out by Counsel for D-2 that after the
last date of hearing, D-2 has filed his written statement. He has
made an oral prayer to this Court to take the same on record.
40.Counsel for plaintiff submits that the same may be taken on
record subject to cost.
41.There is a delay of about 150 days in filing of the written
statement by D-2. Considering the nature of dispute and the
concession given by Counsel for plaintiff, the written statement
of D-2 is taken on record subject to cost of Rs. 15,000/- to be
paid by D-2 to plaintiff.
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42.List for completion of pleadings, payment of cost by D-2 and
D-4 and admission/denial of documents on 18.07.2025.
Aashish Gupta
DJ-01/NE/KKD/DELHI
29.04.2025
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