Ram Jaiswal @ Ram Sunder Jaiswal v. Kailash Chandra
2015-03-17
RAJESH DAYAL KHARE
body2015
DigiLaw.ai
JUDGMENT Rajesh Dayal Khare, J. Heard learned counsel for the petitioners. 2. Present writ petition has been filed seeking a writ of certiorari quashing the order dated 25.2.2015 and 09.10.2014 passed by? II-Additional Judge, Small Causes Court, Kanpur Nagar in Rent Case No. 2 of 2013 and to allow the application of the petitioner-tenant for local inspection of House No. 32/101A(1) Maniram Bagiya Kanpur Nagar and 32/54 Ghumani Bazar, Kanpur Nagar. 3. It is contended by learned counsel for the petitioners that the petitioner is tenant of? ground floor of House No. 32/101A(1) Maniram Bagiya Kanpur Nagar? of which the respondents are the landlords, which is being used? by the petitioner 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 Prescribed Authority/Judge Small Causes Court, Kanpur Nagar being Rent Case No. 2 of 2013 on that ground of personal need on the ground that they have a big family and the accommodation in their possession is not sufficient to fulfill their requirements.? Learned counsel for the petitioner contends that the petitioner filed his objections denying the fact made by the landlord? and specifically stated? that the landlord have sufficient accommodation to meet their needs.? It is next contended that to authenticate the averments made by the petitioners to show that the landlords have sufficient accommodation in his possession, they filed application under Section 34 of U.P. Act No. XIII of 1972 for local inspection of the house in question, to which the respondents did not file any objections.? However, in spite of the fact that local inspection of the house in question was absolutely necessary to bring on record the correct facts, said application was rejected.? It is next contended that the respondents in the release application had also mentioned that the petitioners have another accommodation being House No. 32/54 Ghumani Bazar Kanpur Nagar, in which the petitioners are doing their business, which factum was denied by the petitioners and therefore, another application was moved by the petitioners for appointment of an Advocate Commissioner for local inspection of House No. 32/54 Ghumani Bazar Kanpur Nagar, to which respondents filed objections, which application was also rejected by the Prescribed Authority, Kanpur Nagar vide order dated 25.2.2015.? The orders dated 09.10.2014 and 25.2.2015 are impugned in the present writ petition. 4.
The orders dated 09.10.2014 and 25.2.2015 are impugned in the present writ petition. 4. Learned counsel for the petitioner argues that the prescribed authority has passed the orders impugned on the premise 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? the contention of the petitioners that the landlords have sufficient accommodation to meet their needs and the fact that the petitioners did not have alternative accommodation from where they are doing their business, was absolutely essential to be verified by local inspection and for appropriate adjudication of the case.? It is next contended that the aforesaid? applications for local inspection were 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 petitioners and after perusing the material on record, this Court is of the opinion that the argument as raised by the learned counsel for the petitioners has substance and no useful purpose would be served in issuing notice to the respondents and keeping the petition pending. 6.
5. After hearing the learned counsel for the petitioners and after perusing the material on record, this Court is of the opinion that the argument as raised by the learned counsel for the petitioners has substance and no useful purpose would be served in issuing notice to the respondents and keeping the petition pending. 6. Accordingly, present writ petition is finally disposed of with liberty to the petitioners to get the matter reconsidered by the court below by filing a fresh appropriate application before the court concerned for redressal of their 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.