Delhi High Court - Orders
Lillian Krishen vs Harmohinder Kaur Gujral & Ors on 12 March, 2024
Author: Anup Jairam Bhambhani
Bench: Anup Jairam Bhambhani
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 178/2023
LILLIAN KRISHEN ..... Plaintiff
Through: Ms. Manju Oberoi, Advocate.
versus
HARMOHINDER KAUR GUJRAL & ORS. ..... Defendants
Through: Mr. Sandeep P. Agarwal, Senior
Advocate with Ms. Niyati Kohli, Mr.
Pratham Vir Agarwal and Ms. Tanya
Chanda, Advocates for D-2 and D-3.
Mr. Abhishek Kumar, Advocate for
MCD.
Mr. Avishkar Singhvi, ASC with Mr.
Naved Ahmed and Mr. Vivek Kr.
Singh, Advocates for GNCTD.
CORAM:
HON'BLE MR. JUSTICE ANUP JAIRAM BHAMBHANI
ORDER
% 12.03.2024 I.A. 2025/2024 By way of the present application filed under section 151 of the Code of Civil Procedure 1908, the plaintiff seeks permission to demolish the structure standing at property bearing No. D-139, Saket, New Delhi, which, the plaintiff alleges, is damaged beyond repair and has been rendered uninhabitable by reason of the construction undertaken by defendants Nos.1 to 5 in the neighbouring property bearing No. D-138, Saket, New Delhi.
2. The essential issue at hand, at this point, is that before permitting the plaintiff to re-construct her property, it is necessary to document the current state of the property, so as to preserve the evidence, as that CS(OS) 178/2023 Page 1 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2024 at 20:33:04 would be required later for purposes of adjudicating the claims in the suit.
3. As per the record, on orders made by this court, 02 Local Commissioners have already inspected the subject property. One Mr.Pramod Kumar Bhandari, Executive Engineer (CPWD) has rendered a report dated 04.04.2023; and the second, Mr. Keshav Mishra of Avantech Engineering Consortium Pvt. Ltd. has rendered a report/suggestions dated 11.07.2023.
4. Ms. Manju Oberoi, learned counsel appearing for the plaintiff and Mr. Sandeep P. Agarwal, learned senior counsel appearing for defendants Nos. 2 and 3 have various points of challenge to the said two reports/suggestions.
5. In the circumstances, and in order to proceed further with the relief sought by way of the present application, at the suggestion of the court, learned counsel for the parties agree that a qualified structural engineer be deputed to inspect the subject property and render a report on the following aspects :
5.1. Whether the property bearing No. D-139, Saket, New Delhi, as it stands today, is amenable to restoration or retrofitting in order to make it habitable.
5.2. Whether the damage caused to the subject property was the result of the construction undertaken in the neighbouring property bearing No. D-138, Saket, New Delhi. 5.3. Whether the damage to the subject property has been a result of the tunnelling undertaken during the construction of the Delhi CS(OS) 178/2023 Page 2 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2024 at 20:33:04 Metro line that passes near/under the area where the subject property is situate.
5.4. Any other aspect that the structural engineer may deem necessary to comment upon in the above context. 5.5. The structural engineer would also be tasked with collecting any evidence/material that may be deemed necessary to substantiate the opinion in relation to the above queries.
6. For purposes of carrying-out the aforesaid task, the structural engineer shall be entitled to mark-out any evidence/material he wishes to preserve; take photographs thereof; and store it in such room or rooms as may be made available by the plaintiff under the lock-and-seal of the structural engineer.
7. The structural engineer shall also be entitled to take photographs and videography, as found necessary to illustrate the report.
8. The structural engineer shall also be entitled to take the assistance of the local police in order to carry-out the inspection, if so required. SHO, P.S.: Saket is directed to co-operate in that behalf.
9. The inspection shall be carried-out within 02 weeks from the date of the release of this order; and let a report be rendered within 10 days thereafter.
10. The inspection shall be carried-out in the presence of the parties and their counsel. The parties present shall counter-sign the 'on-spot proceedings' recorded by the structural engineer.
11. For carrying out the above tasks, the structural engineer shall be entitled to a consolidated fee of Rs.02 lacs, to be paid upon the completion of the inspection, apart from any out-of-pocket expenses CS(OS) 178/2023 Page 3 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2024 at 20:33:04 that may be incurred. All fees and expenses, shall be borne equally by the parties.
12. As agreed-to by the parties, it is considered appropriate to request the task to be completed by an appropriate senior officer/faculty member/other person from the Indian Institute of Technology, Delhi. Accordingly, the Director, IIT, Delhi is requested to nominate an appropriate person for the task.
13. Let a copy of this order be communicated by the Registry to the Director, IIT, Delhi.
14. It is made clear that the person designated by IIT, Delhi is not expected to remain present in court on the next date.
15. Let a copy of the report be furnished to counsel for both sides.
16. Re-notify on 08th May 2024.
CS(OS) 178/2023
17. Mr. Oberoi submits that the plaintiff does not wish to file rejoinder in the matter.
18. The pleadings are accordingly complete.
19. List before the learned Joint Registrar for marking exhibits and any for remaining proceedings on 24th April 2024.
20. Re-notify for framing of issues on 08th May 2024.
21. Counsel are directed to present proposed issues on the next date.
ANUP JAIRAM BHAMBHANI, J MARCH 12, 2024/ak (Released on : 19th March 2024) CS(OS) 178/2023 Page 4 of 4 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 19/03/2024 at 20:33:04