JUDGMENT :

Prathiba M. Singh, J.

CM APPL. 39224/2019 (for exemption)

1. Allowed, subject to all just exceptions. Application is disposed of.

CM(M) 1288/2019 & CM APPL. 39225/2019

2. The present petition challenges the order passed by the ld. District and Sessions Judge dated 14th May, 2019. The appeal was filed against the original order of the Additional Rent Controller (hereinafter 'ARC') dated 8th September, 2016.

3. The appeal and the original order arise out of the proceedings for eviction instituted by the Respondent/landlord (hereinafter 'landlord'). The landlord had originally filed an application under Order XXVI Rule 9 CPC which came to be decided on 27th March, 2014 in the following terms:

"1. Through this order I shall dispose of an application under Order XXVI Rule 9 read with section 151 CPC filed on behalf of petitioner for appointment of Local Commissioner.

2. The petitioner herein has preferred a petition under section 14(1)(j) of Delhi Rent Control Act, 1958 on account of illegal and unauthorized construction being carried out by the respondent owing to which he seeks eviction of the respondent/tenant. This application has been filed for appointment of Local Commissioner who shall visit the site and file a report in regard to illegal construction carried out by the respondent in the suit property.

3. Application is vehemently opposed by the counsel for the respondent on the ground that prior to the filing of the present petition, the petitioner herein has filed a suit for permanent injunction against the respondent herein in respect of the same property in which MCD was made a party. The detailed reply has been filed by the MCD in the said suit. The certified copy of the reply of the MCD has already been filed by the respondent in the present case. No purpose will be served by appointing a Local Commissioner. The sole purpose of the petitioner is to delay the proceedings.

4. I have heard the arguments advanced by both the counsels and gone through the records annexed with the petition and written statement.

5. The case is at the stage of petitioner's evidence, I feel that at this stage, there is no need of appointment of Local Commissioner for the reason that the detailed report from the MCD is already on record and this application has been filed by the petitioner in order to delay the proceedings. The onus to prove that the unauthorized and illegal construction is carried out is on the petitioner who has to prove the same by leading evidence and the case is already at the stage of petitioner's evidence, the petitioner can prove this fact by leading evidence to this effect. The discretion to appoint a Local Commissioner lies with the Court and I feel that there is no need for the appointment of Local Commissioner at this stage. Accordingly, application of the petitioner is dismissed.

6. Now to come up for PE on 25.04.2014. Advance copy of the affidavit of petitioner's witness be supplied to the respondent."

4. Thereafter the matter continued to remain pending and currently, is stated to be at the stage of evidence. On 8th September, 2016, the ARC, in view of Section 36 of the Delhi Rent Control Act, 1958 (hereinafter 'DRCA') directed appointment of a Local Commissioner to prepare a site plan as also to obtain the dimensions, the nature of projection and the nature of construction etc. The operative portion of the said order reads as under:

"Sh. Sermon Rawat, Advocate, Mobile no. 9873935601 is appointed as a local commissioner. The local commissioner shall visit the tenanted premises and prepare a site plan of the two rooms of the tenancy as well as the terrace above the two rooms and also indicate whether any construction has been raised above the two rooms or whether any part of the adjoining construction is also directly above the two rooms. The site plan may indicate the location of any walls, pillars etc. on the terrace and their positioning viz-a-viz the tenanted rooms on the ground floor. The dimensions of the tw