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2013 DIGILAW 2887 (ALL)

Sanjeev Kumar Varshney v. Mumtaj Begum

2013-11-26

RAN VIJAI SINGH

body2013
JUDGMENT Ran Vijai Singh,J. Heard Sri Manish Chandra Tiwari, learned counsel for the petitioner and Sri Rajesh Gupta, learned counsel for the respondents. 2. This writ petition has been filed for issuing a writ of certiorari quashing the order dated 18.9.2013 passed by the learned prescribed authority for issuing amin commission for verifying the facts as to whether the respondents landlord have constructed the market. 3. It appears the respondents have filed an application under Section 21 (1) (a) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the present petitioner. In the written statement, the petitioner has stated that apart from the accommodation in dispute, the respondent have already constructed a market and his need can be satisfied from that. The release application has been filed with a view to harass the petitioner.The construction of the market has been denied by the landlord. Only with a view to verify this fact as to whether the market has been constructed and is complete or not, the petitioner has filed an application for verifying the spot situation through amin. The petitioner's application has been rejected by the prescribed authority on the ground that the applicant wants to collect the evidence through commission and the same cannot be issued for collecting the evidence. 4. Sri Tiwari contended that it is not the question of collecting the evidence but if there are contradictory stand taken by the parties, the only course open is to clarify the position only by issuing a commission. On the otherhand, Sri Gupta has submitted that the petitioner's application has rightly been rejected by the learned prescribed authority as the court cannot allow an application for collecting evidence by a party through commission. 5. Having heard learned counsel for the parties, I find, from the perusal of the application as well as the order passed by the learned prescribed authority that the parties have although taken the contradictory stand, but the view taken by the learned Prescribed Authority/Judge Small Cause Court cannot be faulted with. 5. Having heard learned counsel for the parties, I find, from the perusal of the application as well as the order passed by the learned prescribed authority that the parties have although taken the contradictory stand, but the view taken by the learned Prescribed Authority/Judge Small Cause Court cannot be faulted with. However it is always open for the prescribed authority in a situation where there are contradictions in the affidavits filed by the parties and those contradictions are material for deciding the controversy on merit, the prescribed authority may issue a commission for verifying the spot suo motu but certainly issuance of commission either for collecting the evidence or for verifying the spot cannot be claimed as a matter of right. 6. This Court in the case of Tushar Kumar Shah Vs. District Judge, Kanpur Nagar ( 2012 (1) ARC 909 ) has held that the Commission cannot be issued for the purposes of collecting evidence on behalf of either party. 7. In Jaya Kalia (Smt.) Vs. Smt. Manju Agarwal (2009(3)ARC 799), this Court has held that if the contents of the affidavit filed on behalf of the landlord are not correct, it can be rebutted on the basis of the affidavit in rebuttal. 8. Again in Smt. Sunder Kaur and Another Vs. Smt. Ram Kali and Others (2011(3)ALJ 165), this Court, taking note of the earlier decisions of this Court in Randhir Singh Sheoran Vs. 6th Additional District Judge (1997(2)JCLR 860), Radhey Shyam Vs. A.D.J., Court No. 13, Lucknow and Others ( 2010(2) A.D.J. 758 ) and Sonpal Vs. 4th Additional District Judge, Aligarh and Others (1992 (2) ARC, 596), has held that the local inspection or Commission 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 local inspection or Commission. Local inspection or issuance of Commission by the Court cannot be claimed as a matter of right of any party. 9. This Court has reiterated the same view in Jagdish Narayan Vs. Subhash Chandra Gupta (WRIT - A No. 59785 of 2013, decided on 29.10.2013) and Vimal Gupta Vs. Piyush Khanna (WRIT - A No. 53453 of 2013, decided on 8.10.2013). 10. 9. This Court has reiterated the same view in Jagdish Narayan Vs. Subhash Chandra Gupta (WRIT - A No. 59785 of 2013, decided on 29.10.2013) and Vimal Gupta Vs. Piyush Khanna (WRIT - A No. 53453 of 2013, decided on 8.10.2013). 10. Otherwise also if anything turns on this, and the release application is allowed, the petitioner will have opportunity to raise this point in appeal. 11. In view of foregoing discussions, I am not inclined to interfere with the impugned order. 12. The writ petition is dismissed.