Delhi High Court - Orders
Subhashini Malik vs S K Gandhi & Ors on 23 July, 2025
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$~16 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1416/2009, CRL.M.A.620/2015, I.A.23829-30/2023 &
I.A.24023/2023
SUBHASHINI MALIK .....Plaintiff
Through: Mr Samar Bansal with Mr Vedant
Kapur, Advocates.
versus
S K GANDHI & ORS. .....Defendants
Through: Mr Prateek, Advocate along with
defendant no.2 in person.
Mr Rohit Nagpal, Local
Commissioner.
+ CS(OS) 3241/2011, CC 50/2012, I.A.15225/2014, I.A.18922/2022,
I.A.3519-20/2023, I.A.4095/2023, I.A.5292/2023, I.A.10412/2023,
I.A.10462/2023, I.A.11589-90/2023, I.A.16789-90/2023, I.A.16805-
06/2023, I.A.17315/2023 & I.A.14938/2025
GEETA GANDHI .....Plaintiff
Through: Mr Prateek, Advocate, along with the
plaintiff in person.
versus
SUBHASHINI MALIK AND ORS .....Defendants
Through: Mr Samar Bansal with Mr Vedant
Kapur, Advocates.
CORAM:
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
ORDER
% 23.07.2025 I.A.13869/2025 (filed on behalf of the plaintiff seeking directions to CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 1 of 6 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 23/07/2025 at 22:49:27 remove locks on the common entry to the first and second floor of the suit property) in CS(OS) 1416/2009
1. In pursuance to the order dated 30.05.2025, the learned Local Commissioner has submitted the report dated 05.07.2025 (hereinafter referred to as the report).
2. Let a copy of this report be supplied to Ms Geeta Gandhi, i.e, defendant no.2.
3. While going through the report, it appears that in paragraph no.7 thereto, the learned Local Commissioner has observed that defendant no.2 has installed iron barriers in the driveway leading to the first floor, second floor, and terrace, thereby obstructing access. It is also stated that an iron gate has been affixed by the defendant no.2 at the staircase leading to the second floor and terrace. The Report further goes on to indicate that the said gate was found to be locked at the time of inspection. The Local Commissioner, therefore, directed the cameraman to take photographs of the said iron barriers and gates. Additionally, various other observations have been made in the report.
4. Ms Gandhi/defendant no.2, who appears in person, however, contends that the report of the Local Commissioner has not yet been furnished to her. Additionally, she contends that the present dispute only relates to the ground and first floor, and therefore, at this stage, there is no reason as to why any inspection of the terrace/roof is to be carried out.
5. Per contra, Mr Samar Bansal, who appears for the plaintiff, contends that the ground and first floor is admittedly in possession of the plaintiff, whereas a part of the terrace is also in occupation of the plaintiff. He also contends that defendant no.2 is not only obstructing the plaintiff's access to CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 2 of 6 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 23/07/2025 at 22:49:27 the ground and first floor, but is not even allowing the plaintiff to have access to the terrace. He, therefore, contends that besides various observations which have already come in the inspection report, the interest of justice would be better served if further inspection is directed to be carried out with respect to two doors at the mumty level of the terrace.
6. He further contended that on an earlier occasion, an inspection regarding the aforenoted aspect was directed, and a Registrar of this Court was appointed as a Local Commissioner.
7. The aforesaid position is vehemently opposed by Ms Gandhi/defendant no.2, and she reiterated her submission that there is no reason as to why the inspection of the terrace/roof is to be carried out. She submitted that her application under Order VII Rule 11 of the CPC will have to be heard first, and only then can the aforesaid directions be passed.
8. I have considered the submissions made by learned counsel appearing for the parties and have also perused the report.
9. It is noted that the instant suit is pending since 2009. There have been various directions from time to time including for appointment of the Local Commissioner.
10. The report of the Local Commissioner dated 28.01.2012 indicates that the earlier Local Commissioner was directed to (i) visit the property to carry out inspection of the entire terrace as of the second floor and ascertain the measurements and dimensions of the said portion of the property with reference to the sanctioned plan and (ii) ascertain the extent of the area of the terrace above the second floor i.e., in respect of the occupation of the plaintiff and the defendant and to take photographs of the said terrace.
11. Some of the observations made by the Local Commissioner in his CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 3 of 6 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 23/07/2025 at 22:49:27 report dated 28.01.2012 are extracted as under:
"9.1 As per directions of the Hon'ble Court a copy of the sanctioned plan ANNEXURE was obtained from the plaintiff. According to the "AREA CHART' highlighted with colour 'YELLOW' in sanctioned plan ANNEXURE 'C', the total area of the plot in question is 60'-0" x 90'-0" (600 Sq. Yds./5400 Sq.Ft./501.66 Sq. Mtrs.). The permitted FAR (Floor Area Ratio) achieved, has been shown as 500 Sq. Mtrs. The permitted covered area on the Ground Floor and the First Floor is 50% of 500 Sq. Mtrs. i.e. 250 Sq. Mtrs. or 2691.06 Sq. Ft. while on the Second Floor the total permitted covered area is shown as 40% of 500 Sq. Mtrs. i.e. 200 Sq. Mtrs. or 2152.85 Sq. Ft.
9.2 On the basis of the inspection done, the measurements taken on the spot and the rough sketches prepared by the Draughtsman, he prepared four fair drawings on AUTOCAD which are annexed hereto as - (i) plan ANNEXURE 'E' showing the roof plan as per the sanctioned plan; (ii) plan ANNEXUE 'F' showing the position existing at site; (iii) plan ANNEXURE 'G' depicting the terrace including the garage block; and (iv) plan ANNEXURE 'H' depicting the terrace without the garage block, respectively. 9.3 As per the position existing on the site the area of the front portion of the terrace in exclusive possession of the defendants (shown in colour ^BLUE' in ANNEXURE 'F') is 1455.50 Sq. Ft. (135.22 Sq. Mtrs.). The area of the existing rear portion of terrace in exclusive possession of the plaintiff (shown in colour 'GREEN' in ANNEXURE 'F'), is 1335.00 Sq. Ft. (110.02 Sq. Mtrs.).
9.4 On a careful perusal of the sanctioned plan with the assistance of the Draughtsman, two important features have been noticed - (i) that on the rear portion of the second floor an area measuring 24'6" x 12'3"= 299.51 Sq. Ft. (7.40 Mtr. X 3.73 Mtr. = 27.82 Sq. Mtrs.) shown in colour 'RED' in ANNEXURE 'C' is delineated as "open to terrace", meaning thereby that noconstruction was allowed to be raised above that portion. But on the actual site pucca construction has been raised upto terrace with RCC roof above it, which is not in consonance with the sanctioned plan, thus constituting unauthorized construction and adding an unauthorized area of 299.51 Sq. Ft, in the rear portion of the terrace; (11) that in the approved plan ANNEXURE 'C' at point encircled 'RED' delineating the SECTION drawn at points 'E to F' no construction has been shown on the terrace above the garage block, whereas on the actual site construction has been raised above the garage block upto terrace level.
9.5 Keeping in view the sanctioned plan and the position existing at CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 4 of 6 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 23/07/2025 at 22:49:27 site, if the unauthorized area of 299.51 Sq. Ft. as mentioned in para 9.4 above, is deducted from the area of terrace in possession of the plaintiff, the position that would emerge would be that the area of the front portion of the existing terrace in exclusive possession of the defendants (shown in colour 'BLUE' in ANNEXURE 'G') would be 1455.50 Sq. Ft. (135.22 Sq. Mtrs.) and that of the rear portion in exclusive possession of the plaintiff (shown in colour 'GREEN' in ANNEXURE 'G' ) would be reduced to 1035.49 Sq. Ft. (96.20 Sq. Mtrs.), which would be Inclusive of the area of the garage block.
If the area of the garage block Is also not found to be Inclusive In the area of terrace In possession of the plaintiff, the area of terrace In possession of the plaintiff (after excluding the unauthorized area of 299.51 Sq. Ft. as mentioned In para 9.4 above, and without the area above the garage block) would be 782.32 Sq. Ft. (72.68 Sq. Mtrs.) as shown In colour ^ GREEN' In ANNEXURE 'H').
10. The report Is accordingly submitted for consideration of the Hon'ble Court."
12. Having perused the aforesaid report dated 28.01.2012 and without prejudice to the rights and contentions of the parties, the Court, at this stage, deems it appropriate to direct for re-inspection of the property in question.
13. Let the inspection so directed be conducted in the presence of both the parties or their respective representatives on 31.07.2025 at 11.30 A.M.
14. Let the inspection be videographed, besides taking photographs. The learned Local Commissioner shall inspect not only the entry to the ground floor and first floor, but also to the mumty of the roof.
15. The same is without prejudice to the rights and contentions of the parties.
16. The remuneration of the learned Local Commissioner is quantified as ₹1.5 lakh, besides the actual expenses of the photographs and videography. The same shall exclusively be borne by the plaintiff.
17. Let the report be submitted immediately thereafter. Let a copy of the CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 5 of 6 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 23/07/2025 at 22:49:27 report be supplied to the learned counsel appearing for the parties once the same is presented before the Court.
18. After the report is received from the Local Commissioner, the Court thereafter, will consider the application under Order VII Rule 11 of CPC.
19. List on 18.08.2025.
20. Order dasti.
PURUSHAINDRA KUMAR KAURAV, J JULY 23, 2025 tr/mj CS(OS) 1416/2009 and CS(OS) 3241/2011 Page 6 of 6 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 23/07/2025 at 22:49:27