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2010 DIGILAW 3233 (ALL)

Irfan Ahmad and others v. Syyed Ausaf Ali

2010-10-20

RAKESH TIWARI

body2010
Rakesh Tiwari, J.:- Heard counsel for the parties and perused the record. 2. The petitioners are tenants on the ground floor of a portion of house no. 88/177-A, comprises of four rooms, one Dalan, one Courtyard, one latrine, one kitchen and one bathroom at Chamanganj, Kanpur Nagar. 3. The respondent landlord filed an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 in the court below for release of the accommodation in question under the tenancy of the petitioners. It was registered as Rent Case No. 24 of 1998, Sayyed Ausaf Ali versus Irfan Mohammad and others. 4. The petitioner tenant filed his counter reply denying the averments made therein. 5. During the pendency of release application, the Prescribed Authority passed an order appointing an Advocate Commissioner. The Advocate Commissioner after inspection submitted his report. 6. After hearing the parties and going through the record, the Prescribed Authority vide his order dated 15.12.2003 allowed the release application filed by the respondent landlord. 7. Aggrieved by the aforesaid order dated 15.12.2003 of the court below, the petitioners filed Rent Appeal No. 3 of 2004 before the appellate Court. 8. During the pendency of aforesaid appeal, the respondent landlord constructed one more room in the premises in question. Thereafter, the petitioners moved an application (paper no.90-Ga) for appointment of Advocate Commissioner on the ground that new developments have taken place in the premises in question. The respondent landlord filed an objection thereto. 9. The Additional District Judge, Court No.9, Kanpur Nagar vide its order dated 7.7.2010 rejected the aforesaid application for appointment of Advocate Commissioner which has given cause for filing the present writ petition. 10. From perusal of the order impugned it appears that during the pendency of release application in the court below on application of the petitioners the Advocate Commissioner was appointed who submitted his report against which no written objection had been filed by the tenants, thus on the basis of evidence the court below had approved the report of the Advocate Commissioner, hence it is established that no objection has been filed by the tenants with regard to non-mentioning of the length and breadth of the room given in the Commissioner's report in the court below. It further held that there is no need of appointing Advocate Commissioner at the appellate stage. It further held that there is no need of appointing Advocate Commissioner at the appellate stage. The petitioners tenants have not mentioned in their application 90-Ga as to when and at which floor the new room has been constructed. Even if the allegation of the petitioners that the landlord has constructed a room is taken as gospel truth then too it only strengthens the case of the landlord that was compelled by circumstances to construct a room as due to litigation his family was suffering hardship. The need and comparative hardship of the landlord is to be decided on the facts and circumstances existing at the time of filing the release application and his need for the accommodation by subsequent development is not extinguished as stated earlier. 11. Moreover, this writ petition has been filed against the order dated 7.7.2010, which is interlocutory in nature. There is no illegality or infirmity in the impugned order,hence no interference is required by this Court under Article 226 of the Constitution. 12. For the reasons stated above, the writ petition is dismissed. No order as to costs. Petition Dismissed.