Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 6865 of 2018 Petitioner :- Baijnath Gupta And 06 Others Respondent :- Additional District Judge-2, Allahabad And 03 Others Counsel for Petitioner :- Anwar Hussain
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner.
Present petition has been filed seeking setting aside of the order dated 4.8.2018 passed by the Additional District Judge, Court No. 2, Allahabad whereby his application Paper no. 18Ga filed under Order 26 Rule 9 CPC for obtaining report of the Commissioner after spot inspection was rejected by the lower appellate court.
Submission of learned counsel for the petitioner is that it is necessary to ascertain the existence of the disputed property so that best evidence regarding position at the spot may come on record.
I have considered the submissions and have perused the record.
From perusal of the impugned order itself it appears that similar application was filed before the lower court, which was rejected on 30.11.2009. The release application filed under Section 21 (1) (a) of U.P. Act No. 13 of 1972 was allowed on 17.3.2015. The record also reflects that the application before the Prescribed Authority was filed at the time of final hearing. The appeal was filed by the present petitioner in the year 2015 and now at the stage of final hearing of the appeal this application has been filed. Law is settled that spot inspection or the Advocate Commissioner report cannot be a substitute for collection of evidence. I find that the court below has rightly relied on the latest judgment of this Court in the case of Mohammad Ibrahim Vs. Ashok Kumar Agarwal 2018 (2) ARC 417 which lays down the law to this effect.
In such view of the matter, I do not find any good ground to interfere in the order impugned herein.
This petition is devoid of merit and is, accordingly, dismissed.
Order Date :- 14.9.2018 p.s.