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2011 DIGILAW 412 (ALL)

Saud Ali Khan v. Manoranjan Agarwal

2011-02-21

RAKESH TIWARI

body2011
JUDGMENT Hon'ble Rakesh Tiwari, J. Heard counsel for the parties and perused the record. This writ petition has been filed challenging the validity and correctness of the impugned order dated 5.1.2011 passed by the Prescribed Authority/Small Causes Court Judge, Gorakhpur in P.A. Case No. 38 of 2009, Manoranjan Agarwal versus Saud Ali Khan. The petitioner has also prayed for issuance of a writ of mandamus commanding the Prescribed Authority not to proceed further in P.A. Case No. 38 of 2009 aforesaid. 2. The order dated 5.1.2011 is an interlocutory order by which the application of the petitioner for spot inspection of the property in dispute has been rejected by the court below. 3. The Prescribed Authority has further held that the application of the petitioner is not justified in the facts and circumstances of this case and that it appears that the petitioner is adopting delaying tactics to delay the hearing of the case which is listed for his evidence. The Court below has also noted that instead of giving evidence he has moved an application for spot inspection of the property in dispute. Therefore, his intention does not appear to be proper. 4. Brief facts of the case are that the respondent filed an application under Section 21(1) of U.P. Act No. 13 of 1972, which was registered as P.A. Case No. 38 of 2009, before the Prescribed Authority, Gorakhpur for a direction to the petitioner tenant to vacate the shop in question occupied by him on the basis of comparative hardship of both the parties. The application appears to have been filed by the respondent on the ground that he is running the marriage hall in the name and style of Swayambar Guest House and is facing a lot of difficulty in arrangement of his business, hence he requires more accommodation for the purpose of kitchen under the tenancy of the petitioner. 5. The application was contested by the petitioner on the ground that the respondent has other alternative accommodations and open space as such his comparative hardship can be meted by the vacant shops in his possession. It also appears that application ( paper no.23-C) was moved by the petitioner along with map of the premises in dispute with shops and land appurtenant by Commissioner praying for preparation of scale map. 6. It also appears that application ( paper no.23-C) was moved by the petitioner along with map of the premises in dispute with shops and land appurtenant by Commissioner praying for preparation of scale map. 6. The contention of learned counsel for the petitioner is that the spot inspection is required for disposal of aforesaid P.A. Case as the parties are having their claim on different set up as well as the respondent is saying that the father of the petitioner was tenant in the shop in dispute. On the other hand, the pleading of the petitioner is that late Taslim Khan his father and his real brother Naseem Khan, uncle of the petitioner are the joint tenant in the shop in dispute and they are running their bags shop in the premises in question jointly and that the shop is being run by the petitioner with the help of his uncle Naseem Khan, hence the allegations of the respondent are absolutely incorrect. 7. In support of his aforesaid contention, learned counsel for the petitioner has relied upon two judgments of this Court rendered in Iqbal Ahmad versus Ram Naran Gera and another, ( 2009 (1) ARC 713 and in Kishore Seth versus Prescribed Authority/Ist C.J. (Junior Division), Kanpur Nagar and another, (2009 (2) ARC 74. 8. 7. In support of his aforesaid contention, learned counsel for the petitioner has relied upon two judgments of this Court rendered in Iqbal Ahmad versus Ram Naran Gera and another, ( 2009 (1) ARC 713 and in Kishore Seth versus Prescribed Authority/Ist C.J. (Junior Division), Kanpur Nagar and another, (2009 (2) ARC 74. 8. The Judge Small Causes Court, Gorakhpur as stated above, has rejected the application of the petitioner vide order dated 5.1.2011 holding thus:- ^^mHk;i{k ds fo}ku ofj"B vf/koDrk dks lquk x;k ,oa i=koyh dk ifj'khyu fd;k x;kA i=koyh ds ifj'khyu ls fofnr gksrk gS fd izLrqr okn 38@89 euksjatu cuke 'kkfgn vyh ih0,0 okn gSA i=koyh okLrs lk{; foi{kh fu;r gSA lUnfHkZr ih0,0 okn lu~ 2009 esa nkf[ky gS tcfd fof/k fuekZrkvksa dh fof/kd ea'kk ;g gS fd ;Fkk lEHko nks ekg ds vUnj ih0,0 okn fuLrkfjr fd;k tk;s rFkk i=koyh ds ifj'khyu ls] ,oa ekeys ds rF; ,oa ifjfLFkfr;ksa esa ls ;g Hkh fofnr gksrk gS fd izkFkhZ @foi{kh lbZn vyh [kka }kjk] izkFkZuk i= 23x ds ek/;e ls ekSds dk vehu }kjk fujh{k.k djds o Ldsyh uD'kk dj cuok;k tkuk lUnfHkZr okn dks izHkkoh o iwjh rkSj ls U;k; fu.kZ;u ds fy, U;k;fgr esa vko';d izrhr ugha gksrk gSA ekeys ds rF; o ifjfLFkfr;ksa esa izkFkhZ }kjk fn;k x;k izkFkZuk i= ek= okn dh dk;Zokgh foyfEcr djus ds vk'k; ls nqjHkkoukiw.kZ fn;k x;k izrhr gksrk gS rFkk izkFkhZ @ foi{kh }kjk izLrqr fof/k O;oLFkk ekeys ds rF; ifjfLFkfr;ksa esa iw.kZr% iz;ksT; ugha gS tcfd vkosnd }kjk izLrqr fof/k O;oLFkk vkosnd ds rdksZa dks cy iznku djrk gSA ekeys ds rF; o ifjfLFkfr;ksa esa izkFkZuk i= 23 x esa fof/kd cy u gksus ds dkj.k [kkfjt fd;s tkus ;ksX; gSA vkns'k izkFkZuk i= 23 x esa fof/kd cy u gksus ds dkj.k [kkfjt fd;k tkrk gSA i=koyh okLrs lk{; foi{kh fn0 3-2-2011 dks is'k gksA g0 &vLi"V fu;r izkf/kdkjh@ y?kqokn U;k;k/kh'kA** 9. In the case of Iqbal Ahmad (supra), the landlord had filed a release application. An application for spot inspection by the Advocate Commissioner/Amin was moved by the tenant in appeal which was rejected by the Appellate Court. Writ was filed challenging the validity and correctness of the order rejecting the application for spot inspection. In the case of Iqbal Ahmad (supra), the landlord had filed a release application. An application for spot inspection by the Advocate Commissioner/Amin was moved by the tenant in appeal which was rejected by the Appellate Court. Writ was filed challenging the validity and correctness of the order rejecting the application for spot inspection. The writ petition was disposed of at the admission stage without issuing to or hearing landlord respondent no.1 and it was further provided in the order that in case he feels aggrieved by this order,he is at liberty to apply for recall of the order. This order has been passed in peculiar facts and circumstances of that case in which the landlord was not heard by the Writ Court and the order was passed by the Court at the admission stage with a liberty to the landlord to apply for recall of the order in case he is aggrieved by the order. This judgment is therefore, not applicable to the facts and circumstances of the present case. 10. Learned counsel for the petitioner has then relied upon Order XXVI Rule 9 of C.P.C. read with Section 34 of Uttar Pradesh Urban Buildings ( Regulation of Letting, Rent And Eviction ) Act, 1972 and submits that under the aforesaid provisions the court has power to order for spot inspection as the matter is covered by clause (c) of Section 34 of the aforesaid Act No. 13 of 1972, hence the application of the petitioner has been rejected on wholly untenable basis. 11. In the case of Kishore Seth (supra), the tenant had filed an application for spot inspection of the accommodation in dispute in possession of the landlord by Advocate Commissioner which was rejected by the Prescribed Authority. In writ it was agreed that spot inspection will facilitate early disposal of the release application, hence in those circumstances, the court set aside the interlocutory order passed in that case and allowed application for spot inspection through Vakil Commissioner. The writ petition was allowed. The facts and circumstances of the instant case is clearly distinguishable as the landlord has not agreed for spot inspection rather objected to which has been recorded by the court below. 12. I have considered the arguments of learned counsel for the petitioner. The writ petition was allowed. The facts and circumstances of the instant case is clearly distinguishable as the landlord has not agreed for spot inspection rather objected to which has been recorded by the court below. 12. I have considered the arguments of learned counsel for the petitioner. As stated earlier, the aforesaid two cases relied upon by the learned counsel for the petitioner are clearly distinguishable and do not apply to the facts and circumstances of this case. With regard to Order XXVI Rule 9 of C.P.C. read with Section 34 of U.P. Act No. 13 of 1972, suffice it to say that under Order XXVI Rule 9 aforesaid provides that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court. 13. Section 34 of U.P. Act No. 13 of 1972 provides that the District Magistrate, the Prescribed Authority or any appellate or revising authority shall for the purposes of holding any inquiry or hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 ( Act No. V of 1908), when trying a suit, in respect of the following matters, namely- (a) --------------- (b) ---------------- (c) inspecting a building or its locality, or issuing commissions for the examination of witnesses or documents or local investigation. 14. In so far as emphasis laid by the learned counsel for the petitioner upon clause (c) of Section 34 of U.P. Act No. 13 of 1972 is concerned, the ingredient of Order XXVI Rule 9 of C.P.C. and Section 34 of U.P. Act No. 13 of 1972 is attracted. It may be noted that the petitioner had filed a map along with the application giving situation of the property in dispute and its location etc. It may be noted that the petitioner had filed a map along with the application giving situation of the property in dispute and its location etc. On consideration of the aforesaid application along with the map the court below came to the conclusion that the application for spot inspection is not justified which implies that the court below is of the opinion that even if the averments made and the map of the petitioner are considered, it will not elucidate the case of the petitioner or help the court to decide the case, hence scaled map is not necessary. The court below has also noted that when the case was listed for evidence of the petitioner he has moved application for spot inspection in order to delay the proceedings of the case. This also appears to be supported by the fact that the petitioner in prayer (b) has prayed for stay of the further proceedings in P.A. Case No. 38 of 2009. Therefore, from the record it appears that the intention of the petitioner is not bonafide and he wants to delay the proceedings. There is no illegality even otherwise, in the order impugned of the court below. 15. This Court in Civil Misc. Writ Petition No. 31642 of 2007 Smt. Manju Devi Vs. Additional District Judge, VIII Allahabad and others has held that the cases pertaining to Rent Control matters be decided within six months time frame provided in various sections and rules under which applications are filed. 16. Rule 15(3) of U.P. Urban Buildings ( Regulation Of Letting Rent & Eviction ) Rules, 1972 provides that release application may be decided within a period of two months from the date of its presentation. Hence, in the facts and circumstances of the case, the court below is directed to decide P.A. Case No. 38 of 2009 within a period of two months from the date of production of a certified copy of this order. 17. With the aforesaid observation, the writ petition is dismissed. No order as to costs.