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2010 DIGILAW 531 (ALL)

RADHEY SHYAM v. A D J COURT NO 13

2010-02-09

ANIL KUMAR

body2010
ANIL KUMAR, J. ( 1 ) HEARD Sri Satya Prakash learned counsel for the petitioner and Sri P. C. Misra, learned Standing Counsel for opposite party No. 1 and learned counsel for opposite parties No. 2 to 7. ( 2 ) IN brief, the facts of the present case are that one Dwarika Prasad Sahu was the owner of the house No. 133/351, Aminabad Road. Police-station Naka hindola, Lucknow and in the said premises one Ram Prasad was tenant in respect of the shop and Khandhar on the ground floor. The landlord moved an application on 14. 12. 1985 for release of the premises in question which is under the tenancy of the tenant (Ram Prasad) and accordingly, PA. Case No. 60 of 1995 was registered in the Court of Judge Small Causes Court/prescribed Authority, Lucknow, During the pendency of the PA. Case, the original landlord and the tenant both had expired as such their heirs were substituted. By order dated 24. 8. 2000, the prescribed authority had allowed the release application. ( 3 ) THE said order was challenged by way of appeal (Rent Appeal No. 22 of 2000) and the same is pending for adjudication in the Court of Additional District judge, Court No. 13, Lucknow. During the pendency of the appeal filed on behalf of the tenant an application under Section 34 of the U. P Act No. 13 of 1972 for issuing a Commission was moved and the same was rejected by the appellate authority. ( 4 ) THE said order was challenged before this Court in Writ Petition No. 153 (M/s) of 2003, Smt. Durgawati and others v. Ill Additional District Judge, Lucknow and others, and by order dated 29. 1. 2003 this Court had disposed of the same by following directions: "accordingly, the impugned order passed by the Court below is held to be illegal and is set aside. The matter is sent back to the Court below with a direction that it shall re-hear the parties and their learned counsel on the application for issue of commission and shall pass suitable and speaking order according to law. " ( 5 ) MOREOVER, during the pendency of the appeal, Sri Chottey Lal one of the tenant had died and an intimation was given to the Court regarding his death but no formal application for substitution was filed as required under the Act. " ( 5 ) MOREOVER, during the pendency of the appeal, Sri Chottey Lal one of the tenant had died and an intimation was given to the Court regarding his death but no formal application for substitution was filed as required under the Act. Since the application for substituting the heirs of Chhotey Lal was not filed, so the landlord/opposite parties in appeal moved an application for abatement of the same on the ground that no substitution application was filed within time and therefore, the appeal stands abated. By order dated 11. 1. 2007, the appellate authority had dismissed the Rent Appeal No. 22 of 2000 has abated. The said order was challenged by the tenant before this Court by way of Writ Petition No. 13 (R/c) of 2007 (Smt. Durgawati and others v. Additional District Judge, Court no. 3, Lucknowand others) and on 9. 4. 2008 the writ petition was allowed and the order dated 11. 1. 2007 was set aside and a direction was also given that Rent appeal No. 22 of 2000 be disposed of as expeditiously as possible and parties are directed to appear before the Additional District Judge, Court No. 3, Lucknow on 1. 5. 2008. ( 6 ) THEREAFTER on 17. 7. 2008, petitioner-tenant moved an application for issuance of Commission before opposite party No. 1 which was registered as paper No. C-88 to which opposite parties No. 2 to 7 filed their objection (C-92 ). After hearing the parties, respondent No. 1 by order dated 25. 4. 2009 had rejected the application for issuance of Commission, hence the present writ petition. ( 7 ) SRI Satya Prakash, learned counsel for the petitioner has assailed the order dated 25. 4. 2009 passed by opposite party No. 1 on the ground that the same is illegal, mala fide and arbitrary in nature and the Appellate Court has wrongly observed that Khandhar will come within the definition of building whereas the Khandhar was a part and parcel of the shop and was one tenement and was also the subject matter of release as such the commission is necessary in order to bringing the truth on record. ( 8 ) SRI P. C. Misra, learned counsel for the respondents submits that in the instant case petitioner-tenant demanded inspection of the site in question by an advocate Commissioner to ascertain the position of Khandhar behind the tenanted shop. ( 8 ) SRI P. C. Misra, learned counsel for the respondents submits that in the instant case petitioner-tenant demanded inspection of the site in question by an advocate Commissioner to ascertain the position of Khandhar behind the tenanted shop. After hearing both the sides. the Court below had held that Khandhar is not a building and therefore, is not amenable to U. P. Urban Building (Regulation of letting, Rent and Eviction) Act, 1972, hence rejected the petitioners prayer for issue of Commission. He further submits that it is settled law that to issue and not issue a commission is a discretionary relief cannot be claimed as a matter of right so the present writ petition filed by the petitioner has got no force and is liable to be dismissed. ( 9 ) I have heard the the learned counsel for the parties and perused the record. ( 10 ) FROM the perusal of the record, it shows that the Court below had rejected the application for local inspection after going through the facts on record and while rejecting the same it was held that the commission as sought is in respect to Khandhar and the same does not come within the definition of building under the Act and in this regard he relied upon the judgment of this Court in the case of sanna Ullah v. VIII Addl. District Judge, Meerut and others, 1979 Allahabad Rent cases 138 and Salig Ram v. Rent Control and Eviction Officer and another, 2006 (3) ALJ 161 and it was further held that at time of argument the parties had admitted this fact the portion for which the commission is sought to be issued is a Khandhar so there is neither any necessity for photography nor for issue of commission. ( 11 ) IT is well settled proposition of law that when an application for local inspection is moved in a case, then the Court concerned has a discretion to issue the same or not keeping the facts of the case and the evidence led by the parties whether the same is necessary to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection and upto what extent the same is necessary for disposal of the controversy involved in the case. ( 12 ) THUS, it is mandatory on the part of the Court to allow each and every application which is moved for local inspection and the same cannot be claimed as a matter of right by the parties. Further, while allowing or rejecting the same, the Court should also take into consideration the motive and reasons behind moving the same coupled with the factors, e. g. for what purpose it has been moved. ( 13 ) IN the case of Ranbir Singh Sheoran v. Vlth Additional District Judge, muzaffar Nagar and others, 1997 (2) JCLR 860 (All), this Court has held as under: "the local inspection by Court is made only in those cases where on the evidence led by the parties Court is not able to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection. Local inspection by the Court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence. ( 14 ) IN the case of Son Pal v. Vth Additional District Judgte, Aligarh and others, 1999 (2) Allahabad Rent Cases 596, this Court has held as under: "whether or not a local inspection or commission is necessary for a just decision of case can only be decided after the Court hears the argument and it is for the Court, thereafter, to decide whether to go for local inspection or to issue commission. Instead of addressing arguments, it appears that the petitioner is causing unwarranted delay in disposal of the appeal. " ( 15 ) THE same view was reiterated by this Court in Writ Petition No. 121 (R/c)of 2008, Maqsoodi Begum and others v. Additional District Judge Court No. 15, lucknow and others decided on 4. 8. 2008. ( 16 ) FOR the forgoing reasons, there is no illegality or infirmity in the order dated 25. 4. 2009 passed by Additional District Judge, Court No. 13, Lucknow, opposite party No. 1 thereby rejecting the petitioners application for issuance of commission. Accordingly, the present writ petition filed by the petitioner lacks merits and is dismissed. ( 17 ) NO order as to costs. .