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2013 DIGILAW 2888 (ALL)

Dinesh Kumar v. Saleem

2013-11-26

RAN VIJAI SINGH

body2013
JUDGMENT Ran Vijai Singh,J. Heard Sri Bharat Pratap Singh, learned counsel for the petitioner and Sri M.F.Ansari, learned counsel for the respondent. 2. By means of this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 24.9.2013 passed by learned Additional District Judge, Court No. 9, Aligarh in Rent Control Appeal No. 12 of 2013 (Sri Dinesh Kumar Vs. Sri Saleem) by which the petitioner's application 8-C has been rejected. 3. It appears, the respondent landlord has filed Rent Case No. 6 of 2008 under Section 21 (1) (a) of U.P.Urban Buildings, (Regulation of Letting, Rent and Eviction) Act, 1972 seeking release of the accommodation in dispute, which is in the shape of godown, of which the petitioner happens to be tenant. The release application, after contest, was allowed by the learned prescribed authority vide judgment and order dated 2.5.2013 with the direction to the landlord to pay the rent of two years to the tenant petitioner. 4. Aggrieved by this judgment and order, the petitioner preferred an appeal, which was numbered as Appeal No. 12 of 2013. In the aforesaid appeal, the petitioner has filed an application 8-C praying the court to issue an amin commission for spot verification as the respondent landlord had let out another godown in the same building and this position can only be verified through commission. The otherside has filed an objection stating therein that before the prescribed authority sufficient opportunity was given to the petitioner but the petitioner did not produce any evidence, therefore at this stage, the prayer to issue commission cannot be accepted. 5. The learned Additional District Judge, Court No. 9, after considering the submission of learned counsel for the parties and after going through the contents of the application as well as the objection, has rejected the application on the ground that the facts, which the petitioner wants to bring before the court through commission, has already been filed before the prescribed authority and for that issuance of commission is not necessary. 6. Sri Singh, learned counsel for the petitioner has submitted that the court below has erred in rejecting the petitioner's application. 7. 6. Sri Singh, learned counsel for the petitioner has submitted that the court below has erred in rejecting the petitioner's application. 7. On being confronted as to whether the petitioner has filed affidavit and these grounds were taken before the prescribed authority, the learned counsel for the petitioner has fairly stated that this fact has been stated in his affidavit filed before the prescribed authority. In view of this, the finding recorded by the appellate court to the extent that the evidence has already been filed before the trial court, in this regard cannot be said to be perverse in any manner. 8. Otherwise also, issuance of commission cannot be claimed as a matter of right. 9. 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. 10. 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. 11. 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. 12. 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). 13. 12. 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). 13. Needless to say that while deciding the appeal on merit, if the learned Additional District Judge, Court No. 9, Aligarh, feels that further material is required to be looked into to wash out the ambiguity if any, he may issue commission suo motu. 14. In view of foregoing discussions, I am not inclined to interfere with the impugned order passed by the learned Additional District Judge. 15. The writ petition is dismissed. 16. However, it is observed that in case, anything turns on this, and the appeal is dismissed, it is always open to the petitioner to raise this point while challenging the appellate court judgment.