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2018 DIGILAW 27 (ALL)

Chhotey Lal Singh v. Gulam Qadir

2018-01-04

MAHENDRA DAYAL

body2018
JUDGMENT : Mahendra Dayal, J. 1. Heard learned counsel for the parties and perused the impugned order. 2. The petitioner has approached this Court under Article 227 of the Constitution of India for setting aside the order dated 30.10.2017, passed by Special Judge (Ayurved Scam)/ Additional District Judge, Lucknow in Rent Appeal No. 4 of 2017, whereby the learned appellate court has rejected the application for amendment moved by the petitioner as well as the application filed by him for local inspection. 3. It has been contended by the learned counsel for the petitioner that when the case was pending before the Prescribed Authority, the petitioner brought to the knowledge of his counsel, the entire facts but he could not incorporate the important facts in the written statement. The learned counsel has referred to the amendment application filed by him before the learned appellate court to show that the amendments sought by the petitioner before the appellate court, do not change the nature of the defence and the grounds sought to be added involve mixed question of law and fact. It has also been submitted that the learned court below has rejected the application for amendment only on the ground that this amendment was not sought by the petitioner before the Prescribed Authority. 4. It is next submitted by the learned counsel for the petitioner that application for local inspection was moved before the appellate court so that the property in dispute may be inspected and the actual area and boundary, are brought on record. The said application has also been rejected by the learned 1st appellate court. 5. Shri J.N. Pandey, learned counsel for the respondent has submitted that no reason has been shown by the petitioner as to why the amendment could not be sought by the petitioner when the case was pending before the Prescribed Authority and remained pending for about 6 years. Moreover, if there is any subsequent development, the same may be brought to the knowledge of the Court by filing additional evidence in the form of affidavit. With regard to the local inspection, it has been submitted by the learned counsel for the respondent that entire area of disputed premises is 1250 Sq. Ft. only. The half thereof is owned by the respondent No. 1. The release application has been filed only for the area of 625 Sq. Ft. With regard to the local inspection, it has been submitted by the learned counsel for the respondent that entire area of disputed premises is 1250 Sq. Ft. only. The half thereof is owned by the respondent No. 1. The release application has been filed only for the area of 625 Sq. Ft. in which the petitioner is tenant. The copy of the sale deed is already on record. It is a settled law that the commission for local inspection cannot be issued to create evidence. The area of disputed premises as well as the boundary may be brought on record by way of filing affidavit or any other document but local inspection is not at all required. It has also been submitted by the learned counsel for the respondent that the respondent is contesting the release application since last 7 years and the petitioner is challenging the proceedings on one ground or the other. The application for amendment and local inspection has also been filed only in order to delay the disposal of the appeal. 6. Having heard learned counsel for the parties and having gone through the impugned order, I do not find any illegality and infirmity in the impugned order. The writ petition lacks merit and is accordingly dismissed. However, it will be open for the petitioner to file affidavit by way of additional evidence to bring on record any subsequent development.