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2024 DIGILAW 1765 (ALL)

Sirajuddin Khan v. Laxmi Chandra

2024-07-30

PIYUSH AGRAWAL

body2024
JUDGMENT Piyush Agrawal, J. Heard Mr. Krishna Mohan Garg for the petitioner and Mr. Jitendra Pal Singh Chauhan for the respondent. 2. The present petition u/a 227 has been filed against the order dated 18.5.2024 passed by the Additional District & Sessions Judge / F.T.C., Court No. 2 Bijnor in Misc. Civil Appeal No. 2 of 2023 (Sirajudding Khan v. Laxmi Chandra) by which the application vide paper no. Ga-43 for issuance of a commission, has been rejected. 3. Learned counsel for the petitioner has submitted that respondent has filed an application under Section 21 (1) (a) of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against the petitioner in the court of Prescribed Authority Najibabad for release of shop in question, which is under the tenancy of the petitioner. After adducing the evidence by the parties, the Prescribed Authority has allowed the release application on 21.12.2022 without considering the material on record. Feeling aggrieved to the said order, the petitioner has filed a Rent Control Appeal No. 2 of 2023. During pendency of the said appeal, the petitioner moved an application for issuance of commission vide paper no. Ga 43, which has been rejected by the impugned order. 4. Learned counsel for the petitioner has submitted that release application has wrongly been allowed on the ground of need of the son of the respondent-applicant. He further submitted that respondent-applicant has other accommodation, therefore, the need was not bona fide but by the impugned order, the application paper no. Ga-43 filed by the petitioner, has wrongly been rejected. He prays for allowing the present petition. 5. In support of his submission, leaned counsel for the petitioner has relied upon the judgements of this Court in the cases of Dwarika Nath Soni v. Bhagwan Das Gupta, 2003 (1) ARC 418 and Parsadi Lal Halwai v. Prescribed Authority and another, 1983 (2) ARC 434. 6. Per contra, learned counsel for the respondent has submitted that application for issuance of a commission has been made with a view to delay the proceeding. He submitted that at this stage, commission cannot be issued for collecting the evidence. The court below after perusal of evidence on record has allowed the release application. He further submitted that if the petitioner is aggrieved, it is always open for him to challenge the outcome of the appeal. 7. He submitted that at this stage, commission cannot be issued for collecting the evidence. The court below after perusal of evidence on record has allowed the release application. He further submitted that if the petitioner is aggrieved, it is always open for him to challenge the outcome of the appeal. 7. In support of his submission, learned counsel for the respondents has relied upon the judgements of this Court in the cases of (i) Abdul Aziz v. Sri. Khalil Ahmad and others, 2014 (1) ARC 312, (ii) Tamanna Bano @ Sadhana Devi v. Imran Ahmad and others, 2010 (9) ADJ 428 , (iii) Smt. Meena Begum v. Additional District Judge, [2018] 2 ARC 639 and (iv) Mohammad Ibrahim v. Ashok Kumar Agarwal, 2018 (2) ARC 417. 8. After hearing learned counsel for the parties, the Court has perused the records. 9. By the order dated 21.12.2022, the release application of the respondent was allowed by reasoned order, against which, an appeal was preferred by the petitioner and during pendency of the said appeal, an application paper no. Ga-43 was filed for issuance of a commission, which was rejected by the impugned order. It is settled law that a commission cannot be issued for collecting evidence. It can be issued in cases where on evidences 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 by the commission. The issuance of commission by the Court cannot be claimed as a right by any of the parties. 10. The said view has been express in the case of Smt. Meena Begum (supra); relevant para of which is quoted hereunder:- "13- The second submission for attacking on the impugned judgments on the ground of rejection of the application for Advocate Commission, is also wholly misconceived. 14- Perusal of the order dated 20.5.2016 in P.A. Case No.64 of 2013 passed by the Additional Civil Judge (Senior Division ), Court No.5, Agra, shows that the application 69-C was filed by the defendant-petitioner for inspection of three houses i.e. Property No.28/420 and 28/390, Bindaganj, Chhatta Ward, Agra, and property No.18/86, Mantola, Agra. The court below found that the plaintiff-respondent no.3 has set up bonafide need of the disputed shop for one of his son. The court below found that the plaintiff-respondent no.3 has set up bonafide need of the disputed shop for one of his son. The allegation of the defendant-petitioner was that during pendency of the P.A. Case, the plaintiff-landlord has let out one shop to one Sri. Salim in February 2016. The Prescribed Authority came to the conclusion that such allegation may be established by filing evidence. 15- It is settled law that a Commission cannot be issued for collecting evidence. It can be issued in cases where on evidences 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 issue of Commission by the court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and the Court is not expected to visit the site for collecting evidence. This legal position has been settled by various judgments including the judgment of this Court dated 20.9.2017 in Matters Under Article 227 No.5868 of 2017 (Yupendrakalara v. Pradeep Singal) (Para Nos. 8 to 12. Under the circumstances, I do not find any substance in the second submission advanced by the learned counsel for the defendant-petitioner. Consequently, the second submission is also rejected." 11. Similar view has been taken in the case of Tamanna Bano @ Sadhana Devi (supra); relevant paras are quoted hereunder:- It appears that contention of the counsel for petitioner is that father of the respondent landlord has another house in his possession and as such commission be issued for verification of the same. The application has been rejected by the court by recording finding that appellant by the application wants to collect fresh evidence at the appellate stage. As regards bonafide need and comparative hardship is concerned, the trial court has already addressed the issue and has come to the conclusion that accommodation of father of the respondent in another building is insufficient for his purpose and that accommodation in question was bonafide required by the son of the landlord respondent who is getting married. The finding of bonafide need and comparative hardship has been thus decided in favour of the landlord respondent by the courts below. 12. The finding of bonafide need and comparative hardship has been thus decided in favour of the landlord respondent by the courts below. 12. This Court in the case of Abdul Aziz (supra) held as under:- "11. From the aforesaid narration of the fact, it is evident that the impugned order dated 6th November, 2003 (Annexure 11 to the writ petition) has been passed on the said application (paper No. 38-Ga) for appointment of Advocate Commissioner of spot inspection during the pendency of the said Rent Appeal No. 172 of 1999. Thus the impugned order dated 6th November, 2003 is an interlocutory order. 12. It will be open to the petitioner to challenge the said impugned order dated 6t November, 1999 before this Court. In case, the final decision in the said Rent Appeal No. 172 of 1999 goes against the petitioner, and the petitioner challenges such decision before this Court." 13. Again this Court in the case of Mohammad Ibrahim (supra) has held as under:- "19. This Court observed that the facts which could be proved or established by leading evidence by the petitioner cannot be ascertained by issuing a Commission. Issuing a Commission cannot be a substitute for leading evidence. ... 20. The Prescribed Authority has observed on the basis of judgment rendered in Lokesh Kumar v. Ravi (supra) and also in the facts and circumstances of the case before it that the Release Application was pending since 2014, evidence had been led by all parties and only to delay the proceedings / disposal of the Release Application, such an application for local inspection had been moved. It has therefore rejected application paper no. 57-C." 14. The case law relied upon by the counsel for the petitioner as referred above, are not applicable in the facts and circumstances of the present case. At the appellate stage an application for issuance of commission has been made by the petitioner with a view to collect evidence, which is not permissible under the law as referred herein above. 15. If the petitioner is aggrieved by the appellate order, it is always open for him to challenge the same before the competent Court. 16. In view of the facts and circumstances of the case, no interference is called for by this Court in the impugned order. 17. The writ petition is accordingly dismissed.