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2019 DIGILAW 1156 (RAJ)

Sanjay Gulati v. Giriraj

2019-04-16

PUSHPENDRA SINGH BHATI

body2019
JUDGMENT : PUSHPENDRA SINGH BHATI, J. 1. The petitioner has preferred this petition claiming following relief:- "It is therefore humbly prayed that the writ petition may kindly be allowed and the Application filed by the petitioners dated 11.2.2019 may kindly be allowed and the order dt. 16.2.2019 Ann. 6 with effect to the application dt. 11.2.2019 filed by the petitioners may kindly be quashed and set aside." 2. The respondents preferred a suit for eviction on the ground of nuisance and personal bonafide necessity and maintenance of premises in question. The petitioner filed reply to the petition and denied the averments pertaining to the condition of the construction in question. The respondents filed an application dt. 23.1.2019 under Sec. 21 of the Rajasthan Rent Control Act, 2001 seeking permission of the learned Court below for taking photographs and CDs regarding disputed premises. 3. The petitioner filed a reply stating therein that the photographs and CDs does not belong to the disputed premises. The petitioner on 01.2.2019 preferred an application under Sec. 21 of the Rent Control Act and under Order 26 Rule 9 of the CPC for appointment of Commissioner. 4. Learned counsel for the petitioner submits that dismissal of such application vide order dt. 16.2.2019 is illegal because of the way, during the proceedings the petitioner has been claiming the premises as in good condition to do the business whereas the respondent has been claimed the premises to be requiring maintenance. 5. Learned counsel for the petitioner further submits that since the contentious issue of the condition of the building has been ought to have appointed a Commissioner while allowing the application of the petitioner. 6. Learned counsel for the petitioner has referred to the judgment passed in Balwinder Singh and Anr. vs. Dilbag Singh and Ors. reported in AIR 2019 P&H 5 , Shanu Baheti vs. Municipal Council, Pali and Anr. Reported in 2012 (2) RRT 1210 and J. Venkataeswara Rao vs. Smt. Vijaya Lakshmi reported in 2018(1) Civil Court Cases 499 (T & A). 7. Learned counsel for the respondent has opposed the submissions on the ground that the petitioner is trying to seek gathering of evidence which is not permissible in law. 8. Reported in 2012 (2) RRT 1210 and J. Venkataeswara Rao vs. Smt. Vijaya Lakshmi reported in 2018(1) Civil Court Cases 499 (T & A). 7. Learned counsel for the respondent has opposed the submissions on the ground that the petitioner is trying to seek gathering of evidence which is not permissible in law. 8. Learned counsel for the respondent submits that if at all the petitioner wants to establish some facts the onus of establishing such fact is upon him and appointing of Commissioner would amount to collecting evidence. 9. After hearing, learned counsel for the parties and perusing the record, this Court finds that from the day one, the disputed question of facts regarding conditions of the building are being raised by both the sides. The issue for its adjudication would definitely requiring an appointment of Commissioner as the Commissioner while getting eyes of the Court shall bring the correct position before the Court and, therefore, wo has caused such condition would be up to the parties to establish. 10. In the present facts and circumstances, the appointment of Commissioner would not amount gathering evidence and it will simply bring the status before the eyes of the learned Court below which shall enable it to make appropriate jurisdiction. 11. In light of aforesaid observations, the writ petition is allowed. The impugned order dt. 11.2.2019 is quashed and set aside and the application of the petitioner seeking appointment of Commissioner is allowed.