SIMRAT KATYAL Vs. VIRENDER KATYAL

JUDGEMENT

(1.) By means of this petition under order 227 of the Constitution, the petitioner challenges the validity of order dated 7.12.98 passed by the learned Additional District Judge, Delhi, thereby disposing of the objections of the petitioner against the report of the local Commissioner dated 26.5.1998.

(2.) The relevant facts leading to the present petition in brief are that a suit for perpetual injunction filed by the petitioner herein against the respondent restraining the defendant from interfering with and obstructing the use and enjoying her portion of house bearing No.21, Bungalow Road, Delhi and also from preventing her to have access to and enjoying the use of garage and servant room with rear courtyard till such time and alternate garage block and servant quarter is provided by the respondent in terms of Memorandum of Understanding dated 30.4.90 (in short MoU) is pending before the learned trial court. After the defendant-respondent had offered to construct the garage cum servant quarter block or to bear the cost of its construction vide an order dated 19.5.1998, the learned trial court appointed Shri Ramesh Kumar Junior Engineer from M.C.D. as local commissioner with the direction to go to the spot for inspection and to suggest the place for construction of garage-cum-servant quarter in conformity with the building bye laws of the MCD. The above named local Commissioner inspected the site and submitted his report dated 26.5.1998. The salient features of the said report of the local Commissioner are as under :-

(3.) The petitioner-plaintiff assailed the said report of the local commissioner inter-alia by raising the objections that the report of the local Commissioner was absolutely vague and non-specific in as much as the local Commissioner has failed to state in categorical terms if construction of another garage-cum-servant quarter block would be permissible though he indicated that no garage-cum-servant quarter block was permissible in the set back but has failed to indicate whether construction of such a garage-cum- servant quarter block in addition to the one existing in the building was permissible at all; the local Commissioner failed to take into account the sanctioned building plan and the existing building plan as also the completion certificate; the local Commissioner has exceeded his brief by suggesting a site for "uncovered parking area" adjacent to the main building block without specifying the area in which garage-cum-servant quarter block similar to the existing once could be constructed in conformity with the Building Bye Laws and lastly the local Commissioner has failed to point out the deviation from the sanctioned plan in the existing building which is a significant fact and that the- report has been made in the most casual manner and it does not serve the purpose for which the local Commissioner was appointed. The reply to the said objections was filed on behalf of the respondent thereby denying that there were any sufficient ground for setting aside the report of the local Commissioner or there was any scope for further directions to the local Commissioner to make certain clarifications as was sought for by the petitioner. The learned trial court by means of the aforesaid order has dismissed the objections of the petitioner against the report of the local Commissioner.