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2015 DIGILAW 347 (ALL)

Ashutosh Jaiswal v. Kailash Chandra

2015-02-23

RAJESH DAYAL KHARE

body2015
JUDGMENT Rajesh Dayal Khare,J. Heard learned counsel for the petitioner. 2. Present writ petition has been filed seeking a writ of certiorari quashing the order dated 19.1.2015 passed by II-Additional Judge, Small Causes Court, Kanpur Nagar in Rent Case No. 1 of 2013 and to allow the application of the petitioner-tenant for local inspection of House No. 32/101A(1) Maniram Bagiya Kanpur Nagar. 3. It is contended by learned counsel for the petitioner that the petitioner is tenant of three rooms, Latrine, Bathroom and a Kitchen of House No. 32/101A(1) Maniram Bagiya Kanpur Nagar(hereinafter referred to as 'accommodation in question') which was being used for residential purposes. It is next contended that the respondents filed a release application under Section 21(1)(a) of U.P. Act No. XIII of 1972 before the II-Additional Judge, Small Causes Court, Kanpur Nagar being Rent Case No. 1 of 2013 on that ground that the landlord does not have sufficient accommodation and has a big family, therefore, required the accommodation in question for his personal need. Learned counsel for the petitioner contends that the petitioner filed his objections bringing on record that the respondents-landlord is having portion in his occupation, which is more than his need and has additional accommodation in his possession, which fact was concealed by the respondents in the release application. It is contended that the respondents filed their reply to the aforesaid objection of the petitioner but did not deny the averments made by the petitioner regarding additional accommodation. Learned counsel for the petitioner contends that in order to bring the correct position before the prescribed authority and to facilitate the court below to decide the proceedings expeditiously, an application under Section 34 of U.P. Act No. XIII of 1972 was filed praying for local inspection of the house in question, which has been rejected by the order impugned. 4. Learned counsel for the petitioner argues that the prescribed authority has passed the order impugned on the ground that it is the discretion of the prescribed authority to allow the application for local inspection or not and such application cannot be moved for creating evidence. 4. Learned counsel for the petitioner argues that the prescribed authority has passed the order impugned on the ground that it is the discretion of the prescribed authority to allow the application for local inspection or not and such application cannot be moved for creating evidence. It is next argued that as the landlord, in his release application, had concealed the additional accommodation which was in his possession and which satisfies his needs, said application for local inspection was moved to bring the correct facts before the court below in order to enable the court below to decide the release application expeditiously, which has been illegally rejected which is in teeth of settled principle of law as laid down by this Court and he has relied upon judgment of this Court reported in 2009(1)ARC 713 in the matter of Iqbal Ahmad versus Ram Naran Gera and another, 2009(2)ARC 74 in the matter of Kishore Seth versus Prescribed Authority/1st C.J.(Junior Division), Kanpur Nagar and another and 2003(1) ARC 418 in the matter of Dwarika Nath Soni versus Bhagwan Das Gupta in support of his contention and has argued that this Court had categorically held that the discretion with regard to issuance of commission is to be exercised in order to ascertain the exact position on the spot instead of trying to infer it by means of complicated legal logic applied to the evidence on record. 5. After hearing the learned counsel for the petitioner and after perusing the material on record, this Court is of the opinion that the argument as raised by the learned counsel for the petitioner has substance and no useful purpose would be served in issuing notice to the respondent and keeping the petition pending. 6. Accordingly, present writ petition is finally disposed of with liberty to the petitioner to get the matter reconsidered by the court below by filing a fresh appropriate application before the court concerned for redressal of his grievance within a period of fifteen days from today and in case such an application is filed, same shall be considered and decided by the court concerned most expeditiously, strictly in accordance with law after hearing the parties, preferably within a period of three months thereafter.