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2014 DIGILAW 3141 (ALL)

Ashok Rohatgi v. Raghunandan Malviya

2014-10-14

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh,J. Heard Sri Arun Kumar Singh, learned counsel for the petitioner and Sri K.K. Nirkhi, learned counsel appearing for the respondent. 2. Through this writ petition, the petitioner has prayed for issuing a writ of certiorari quashing the order dated 12.9.2014 passed by the Additional District Judge, Court No. 3, Kanpur Nagar on Application Nos. 19(c) and 32(c) filed in Rent Appeal No. 115 of 2009 (Dr. Ashok Rahatgi Vs. Rathunandan Malviya), by which the petitioner's application for appointment of commission has been rejected. It appears, the petitioner has filed an application under section 34(1)(c) of the U.P. Act No. 13 of 1972 read with Rule 29 of the Rules framed thereunder, praying the court to appoint Commission for inspecting House No. 15/279, Civil Lines, Kanpur, House No. 16/54, Civil Lines, Kanpur, House No. 8/68, Arya Nagar, Kanpur and House No. 24/38, Arya Nagar, Kanpur, to the extent that how many rooms are there in each house and as to whether the entire houses are in occupation of the landlord or it has been given on rent. 3. To this application, an oral objection was made by the other side by submitting that the prayer for appointment of Commission for inspecting the aforesaid houses is nothing, except a device to delay the disposal of the appeal. It was also submitted that the prayer for appointment of Commission is unwarranted for the reason that these materials can be filed by the appellant through affidavit. Further, evidence cannot be collected by using the power of court. 4. The court below considering the fact that the appeal is pending for last two years and the appointment of Commission is not necessary, rejected the petitioner's application. 5. I do not find any error in the order impugned for the reasons that the prayer for appointment of Commission cannot be claimed as a matter of right and it is for the court concerned to consider as to whether for arriving at the right conclusion the appointment of Commission is necessary or not and in case the court comes to the conclusion that it is necessary, it can issue a Commission at any time, even without demand of the parties. 6. In the case of Javed Ali Vs. 6. In the case of Javed Ali Vs. Ahmad Urooz ( 2013 (11) ADJ 355 ), this Court taking note of the earlier decisions on the issue in Smt. Sunder Kaur and Another Vs. Smt. Ram Kali and Others (2011(3)ALJ 165), 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. Again in WRIT - A No. - 59785 of 2013 (Jagdish Narayan vs. Subhash Chandra Gupta) decided on 29.10.2013, this Court has taken the same view. 7. In view of the above, the writ petition lacks merit and it is hereby dismissed.