Full Text
HIGH COURT OF DELHI
Date of Decision: 03rd July, 2025
RACHNA PROTHI .....Petitioner
Through: Mr. Neeraj Malhotra, Sr. Adv.
Through: Mr. Akhil Mittal, Ms. Tamanna Agarwal & Mr. Vineet Kumar Mishra, Advs.
JUDGMENT
1. The challenge in the present petition is with respect to dismissal of the application moved by the petitioner dated 29.10.2024.
2. Petitioner is plaintiff before the learned Trial Court and has filed a suit for mandatory and perpetual injunction. The suit is already at the stage of final arguments and the evidence has already been led by the respective parties.
3. The petitioner/plaintiff, however, moved an application under Order XXVI Rule 10-A read with Order XVII Rule 18 read with Section 151 CPC seeking appointment of Local Commissioner for scientific investigation. The prayer, in the abovesaid application was to the effect that a Local Commissioner be appointed to conduct scientific investigation to determine the age of the partition wall in question. CM(M) 3846/2024 2
4. I have heard Mr. Neeraj Malhotra, learned Senior Counsel for the petitioner and Mr. Akhil Mittal, learned counsel for the respondents.
5. According to Mr. Neeraj Malhotra, need has arisen in view of a specific issue, which has been framed by the learned Trial Court. Such issue i.e. issue No.6A reads as under: “6A. Whether the partition wall as shown in sanctioned building was built later on or not? OPP”
6. Mr. Neeraj Malhotra, learned Senior Counsel for petitioners, submits that the abovesaid issue was framed, subsequently, on the basis of the request made by the defendant. He, in all fairness, submits that the request had been made on the basis of the observation appearing in order dated 14.02.2023 passed by this Court while dealing with FAO 66/2022.
7. This Court is mindful and cognizant of the abovesaid issue.
8. After framing of the abovesaid issue i.e. issue No.6A, parties have already led their respective evidence and have, reportedly, stuck to the stand taken by them in their respective pleadings.
9. The question is whether the scientific investigation of such a kind is, really, necessary or not and whether it would serve any purpose or not.
10. As per the case of the plaintiff, such partition wall was built by the defendants during the Covid-19 period whereas, according to defendants, the partition wall in question was already in existence when he purchased the property in 2018. As per learned counsel for the respondents/defendants, a partition wall is also depicted in the sanctioned plan which was prepared in the year 1985.
11. Mr. Neeraj Malhotra, learned Senior Counsel for petitioner, submits that the abovesaid suit has been filed by the plaintiff and he is not interested in CM(M) 3846/2024 3 delaying the matter. He, on instructions, submits that the petitioner would not make any further request seeking any direction for further appointment of any Local Commissioner or, for that matter, any expert. He submits that he is not even interested in calling any such scientific expert into witness box and would have no objection, if the report of any such expert is straightway taken on record and is appreciated in terms of the oral evidence led by the respective parties.
12. Learned counsel for the respondent opposes the abovesaid request.
13. According to him, no useful purpose would be served as it might be, actually speaking, very difficult for any such expert, to give a pin-pointed opinion, whether the partition wall was constructed when he purchased the property in the year 2018 or in the year 2020.
14. However, since the case is already at the stage of final arguments and learned counsel for the petitioner/plaintiff submits that he would not make any further application and would not even insist for examination of any such expert, the present petition is disposed of with direction to learned Trial Court to appoint a Scientific Expert. As agreed before this Court, let competent Structural Engineer /Expert from Central Public Works Department (CPWD) be appointed. Appropriate communication be sent to him by the learned Trial Court with requisite material and site plan clearly depicting the partition wall in question with direction to such expert to ascertain the age of the abovesaid partition wall. Needless to say, it would prove to be very handy for the learned Trial Court, in case, the expert is able to pin-pointedly answer whether construction of such wall was carried out in the year 2020 or whether it can be said to be in existence prior to December, 2018.
15. The expenditure/fee in this regard shall be borne by the CM(M) 3846/2024 4 plaintiff/petitioner.
16. Both sides would render due assistance and cooperation in this regard and would be at liberty to remain present at the site at the time of abovesaid examination by the concerned Expert. Learned counsel for defendant submits that the ground floor is in occupation of a newly inducted tenant. This Court expects that there would be requisite cooperation from his side also.
17. Both the parties are, accordingly, requested to appear before the learned Trial Court on the date already fixed i.e. 08.07.2025 and learned Trial Court is requested to send requisite communication on the said date itself to CPWD so that there is no further delay in the matter.
18. The petition stands disposed of in the aforesaid terms.
19. Pending applications, if any, also stand disposed of.
20. Since the petition has now been disposed of, once the Report from the concerned Expert is received, learned Trial Court would be at liberty to proceed further with the matter and to pronounce the judgment, after giving due opportunity of hearing to both sides.
JUDGE JULY 3, 2025/ck/SS