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Allahabad High Court · body

2001 DIGILAW 578 (ALL)

KHOKHA RAI v. RAJESH BAHADUR JOHARI

2001-05-25

B.K.RATHI

body2001
B. K. RATHI, J. ( 1 ) THE respondent filed S. C. C. Suit No. 52 of 1992 for eviction of the petitioner from the disputed premises on the ground, namely, (i) that he has made default in the payment of rent, (ii)that he has made material alterations in the disputed accommodation, and (iii) that he has put the tenanted accommodation to use Inconsistent with the purpose for which it was let out. ( 2 ) THE petitioner defendant in the suit moved an application for issue of commission for local inspection of the premises regarding ground Nos. 2 and 3 taken for the ejectment. The application is Annexure-3 to the petition dated 17. 1. 2000. That application was rejected by j. S. C. C. , Allahabad by order dated 2. 2. 2000, Annexure-4 to the petition. Against that order, the petitioner preferred S. C. C. Revision No. 359 of 2000 which has been dismissed on 7. 12. 2000 by xiith Additional District Judge, Allahabad. The petitioner, therefore, has approached this Court invoking extraordinary jurisdiction under Article 226 of the Constitution of India with the request that both the orders be quashed and the application for issue of commission for local inspection be allowed. ( 3 ) I have heard Sri A. M. Lal, learned counsel for the petitioner and Sri Siddharth Verma, learned counsel for the respondent. ( 4 ) IT has been argued by the learned counsel for the petitioner that in order to establish that no material alterations have been made in the accommodation in dispute and that the accommodation in dispute is not being used by the petitioner for the purpose inconsistent with the purpose for which the tenancy was created, the inspection by a commissioner is necessary. It is further contended that the entry of the petitioner has been blocked by the respondent and he has to make the opening in the portion of another tenant for ingress and egress to his house ; that the dispute is regarding a small part of very big bungalow and there are several tenants in the same of the respondent ; that the respondent is a senior advocate and because of his influence, no other tenant is ready to depose in favour of the petitioner. Therefore, the petitioner will not be able to prove his case unless a commission is issued. Therefore, the petitioner will not be able to prove his case unless a commission is issued. ( 5 ) I have considered the arguments. In this case, an application for issue of commission for the above purposes was filed earlier by the petitioner which was rejected on 13. 8. 1999. Against that rejection order, the petitioner moved a review application which was rejected on 22. 2. 1999. The petitioner also preferred a revision against the order dated 13. 8. 1999 rejecting the application for issue of commission. That revision was also dismissed on 15. 10. 1999. ( 6 ) THE present application for Issue of commission is Annexure-3 in which it is mentioned that the respondent on 27. 10. 1999 locked the room in the tenancy of the petitioner from back side and a wall has been constructed to block the rasta for going to the open land which was being used as sahan and was part of the tenanted premises, by the petitioner and his family members so that they may not use it ; that in this manner the respondent has also dispossessed the petitioner from the part of the tenanted accommodation ; that, therefore, the suit is liable to be dismissed and it is necessary that the commission be issued to note the facts mentioned in the application. ( 7 ) THIS is a suit for eviction filed by the respondent and the question whether the petitioner has been evicted from the part of the accommodation or the lock has been put from outside or the wall has been constructed is not to be decided in this case. The petitioner may institute proper legal proceedings for restoration of the tenanted premises in the earlier position. This fact is not to be decided in the suit nor the suit cannot be dismissed for this reason. Therefore, the application for Issue of commission for examining these facts was totally misconceived and was rightly rejected as the same are Irrelevant for the purpose of this suit. ( 8 ) LEARNED counsel for the petitioner has also referred to the decision of the Apex Court in the case of Southern Command Military Engineering Services Employees Co-op. Credit Society v. V. K. N. Nambiar, AIR 1988 SC 2126 . ( 8 ) LEARNED counsel for the petitioner has also referred to the decision of the Apex Court in the case of Southern Command Military Engineering Services Employees Co-op. Credit Society v. V. K. N. Nambiar, AIR 1988 SC 2126 . In this case, the Commissioner filed report showing that the premises is not in occupation of the tenant, but in possession of a stranger. It was herd that the inference of sub-tenancy, could be drawn. However, this authority has no application in the facts of the present case. ( 9 ) IT appears that the suit was filed in the year. 1992 and the petitioner Is adopting all means to delay the disposal of the suit. The application for issue of commission is regarding irrelevant matters not involved for decision in the suit. ( 10 ) THE petition is without merit and is totally frivolous and is hereby dismissed. The petitioner is directed to pay Rs. 5,000 (Five thousand) as special costs to the respondent. .