JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1. Appellant impugns order dated 04.01.2021 whereby the Trial Court has disposed of the interim applications filed by respondents no.1 and 2 under Order XXXIX Rule 1 & 2.

2. Respondents had filed the subject suit for permanent and mandatory injunction and damages against the appellants contending that the appellants are owners and occupants of the second floor with terrace rights and the first floor has been in their possession which was subsequently bought by the appellants. Respondents are owners of and occupying the ground floor and the basement.

3. It is contended that in and around December, 2019, respondents/Plaintiffs started noticing that there was dampness in the master bedroom of the premises at the ground floor. On checking the cause of leakage, it is alleged that leakage was found to be happening from the upper floors i.e. the first and second floors of the subject property.

4. It is contended that leakage and seepage is to an extent that water is dripping on the ground floor and basement of the subject property and even percolating in the electrical pipes and fittings in the walls.

5. Respondents filed the subject applications seeking a restraint on the appellants from causing any seepage or pilferage from the upper floors to the ground floor and basement of the property and for a direction to carry out all necessary repairs and renovation at their own cost so as to prevent any further leakage or pilferage from the upper floors to the ground floor and basement.

6. The Trial Court to ascertain the factual position appointed a Local Commissioner to visit the spot along with an expert. The Report of the Local Commissioner opined that the root cause of leakage or seepage or damage was due to the old pipelines of the entire building. The Trial Court noticed that no objection was filed to the report of the Local Commissioner.

7. The Trial Court has also noticed that the counsel for the appellants had also stated that the pipelines were old and were required to be changed.

8. The Local Commissioner had suggested that repair work required about 3.5 lakhs. After assessing the report, the Trial Court by the impugned order has directed that the entire pipelines, through which water is being supplied from the upper floors to the ground floor, are to be replaced by new pipelines of the same size.

9. Trial Court by the impugned order while directing that pipelines be replaced observed that as no estimate or invoice of new pipelines was produced. The Trial Court directed that the cost of new pipelines and accessories would be borne by the appellants at 80% and respondent at 20%. Trial Court has held that the differential ratio has been directed due to prima facie inaction on part of the appellants to take remedial measures at the earliest which has aggravated the level of damage.

10. Insofar as the cost of labour and material like cement, concrete, sand etc., towards removal of old pipelines and fixing and fitting of new pipelines is concerned, Trial Court has directed that said cost shall be borne 50:50 by the parties. For rest of the repairing works within the respective portions, Trial Court has directed that the same shall be borne by the parties qua their own respective portions.

11. Before this Court, a submission was made on the very first date of hearing. i.e. 15.01.2021 by the learned counsel for the appellants that the inspection was carried out by the Local Commissioner by taking the assistance of a mere plumber and not an expert/engineer. Accordingly, he had prayed for a Civil Engineer to be appointed to inspect the property.

12. In view of the above submissions, the Assistant Engineer (Civil) PWD posted in the Delhi High Court was appointed as a Local Commissioner to inspect the property and submit a report as to the cause of seepage, leakage and dampness in the building.

13. The property was inspected by the Assistant Engineer (Civil)

PWD and report has been filed.

14. As per the report dated