Order 12

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SH. VINIK JAIN, LD. ADMINISTRATION CIVIL
JUDGE-CUM-CIVIL JUDGE-CUM-ADDITIONAL RENT CONTROLLER
(EAST), KARKARDOOMA COURTS, DELHI
CS No. 895/2023
Savita Aggarwal Vs.
Pawan Kr. Mathur
11.06.2025
ORDER ON APPLICATION UNDER ORDER XXVI RULE 9 OF CPC
1. Vide this order the application under order 26 Rule 9 CPC filed by the
plaintiff will be disposed off.
2. The application in brief is that the plaintiff has filed the present suit for
permanent and mandatory injuction to direct the defendant to repair his old rusted
and damaged pipe lines installed in his bathrooms and also to repair the damage
caused by the sepage on the walls of the house of the plaintiff. To ascertain the
actual position of the sepage and damaged walls, the appointment of the local
commissioner is necessary who can inspect the suit premises as well as the
bathroom of the defendant from where sepage is occurring.
3. Defendant without filing the reply has orally prayed for the dismissal of the
application.
4. Arguments heard. Record persused.
5. As stated in the application, the present suit has been filed for permanent
and mandatory injuction against the defendant for repairing his damaged
CS No. 895/2023
Savita Aggarwal Vs. Pawan Kumar Mathur
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pipelines because of which there is sepage in the house of the plaintiff causing
damage to the walls of the plaintiff. The fact in issue in the present suit is
whether the pipelines of the bathroom of the defendant are damaged thereby
causing sepage in the house of the plaintiff. It is a settled law that appointment of
local commissioner shall not be made for marshalling of evidence for any party
in a suit which it was otherwise duty bound to prove to discharge its burden of
proof.
6. The burden to prove that the pipelines of the defendant are damaged lies
upon the plaintiff. It is also not the case that apart from appointment of local
commissioner, the aforesaid fact could not be proved by the plantiff by any other
way. If the application is allowed it will tantamount to collection of evidence on
behalf of the plaintiff which is not permissible.
7.
In the aforesaid reasons the application u/O XXVI Rule 9 CPC dated
06.06.2025 is hereby dismissed.
(VINIK JAIN)
ACJ-cum-CCJ-cum-ARC (East)
KKD Courts, Delhi/11.06.2025
CS No. 895/2023
Savita Aggarwal Vs. Pawan Kumar Mathur
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