Heard Sri R.K. Sharma, learned counsel for the petitioner and Sri Virendra Singh, learned counsel for the respondent Nos. 1 and 2.
The controversy involved in the present case is in respect to release of two door shop situated in the house No. 133/189, Purna Ganesh Ganj, Aminabad Road, P.S. Naka Hindola, Lucknow under the tenancy of the petitioners and respondent Nos. 3 and 4. On 29.07.2004. release application has been moved (Registered as PA. Case No. 549 of 2004) under Section 21(1)(a) of U.P. Act 13 of 1972, written statement filed on 16.08.2007.
During the pendency of the matter before Prescribed Authority as submitted by learned counsel for the petitioner, an application for issue of commission moved not considered by the trial court on one hand and on the other hand by means of a judgement and order dated 15.07.2008 (Annexdure No. 4) release application was allowed. Aggrieved by the same, an appeal under Section 22 of U.P. Act 13 of 1972 (Rent Appeal No. 29 of 2008) filed.
In the said appeal, an application under Section 34(1)(c) read with Rule 22(f) of the U.P. Act, 1972 filed with a prayer to appoint an Advocate/Commissioner for a local inspection of Building No. 133/189, Old Ganesh Ganj, Aminabad, Lucknow and building No. 566/19, Jai Prakash Nagar, Alambagh, P.S. Alambagh, Lucknow at the cost of tenant/petitioner.
On 05.11.2008, landlord/respondents filed objection, after considering the point in respect to issue of local commission on merit, appellate court/Additional District Judge, Court No. 2, Lucknow vide order dated 16 February, 2009 rejected the same with the following observations:-
"Further, the appellants have still opportunity to raise the plea at the time of argument. I am of the opinion that there is no need of appointing an Advocate-Commissioner for local inspection of Building No. 133/189, Old Ganesh Ganj, Aminabad, Lucknow and building No. 566/19, jai Prakash Nagar, Alambagh, Alambagh, Lucknow"
Hence the present writ petition has been filed.
Sri R.K. Sharma, learned counsel for the petitioner while challengingimpugned order submits that in the present case application for issue of commission moved by the petitioners/tenants before the prescribed authority was not considered and decided on merit but vide order dated 15.07.2008 allowed release application under Section 21(1)(a) of the Act.
Again when the matter is pending before the appellate court an application moved by the petitioner/tenant under Section 34(1)(C) read with Rule 22 (f) of U.P. Act 1972 for issue of Advocate/Commissioner in order to submit a report whether two buildings for which the commission is sought is available with the landlord, or not, the said fact has a material bearing on the controversy involved in the present case. However, within any reasonable justification or reasons, rejected byappellate authority by means of the impugned order, as such action on the part of O.P. No. 1 thereby rejecting the application in question is illegal and arbitrary rather contrary to law liable to be set aside.
I have heard the counsel for the parties and gone through the record.
So far as factual matrix of the present case is concerned, the same are not disputed by the parties, in the light of the said fact. Core question which is to be decided in the present case is whether a party can claim appointment of Commission/Advocate Commissioner as matter of right, it is the discretion of the authority under the rent control Act to issue the same in order to decide the controversy, For the said purpose, it is necessary to have a glance on provisions as provided under Section 34(1)(C) and Rule 22 (f) of Rules under U.P. Act 13 of 1972. , which are reproduced hereinbelow:-
"Section 34 - Powers of various authorities and procedure to be followed by them:- (1) The District Magistrate, the prescribed authority or any [appellate or revising authority] shall for the purposes of holding any inquiry of hearing, [any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908), when trying a suit, in respect of the following matters."
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(c) inspecting a building or its locality, or issuing commission for the examination of witnesses or documents or local investigation.
Rule 22 - Powers under the Code of Civil Procedure, 1908 [Section 34 (1)(g)]-- The District Magistrate, the Prescribed Authority or the Appellate Authority shall for the purposes of holding any inquiry of hearing any appeal or revision under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908, when trying a suit, in respect of the following matters:-
(f) the power referred to in Section 151 and 152 of the Code of Civil Procedure, 1908 to make any order for ends of justice or to prevent the abuse of process of the authority concerned.
It is late in a day to quarrel that it is not mandatory on the part of the Court to issue commission. When an application is moved for the said purpose. The local inspection or commission by court is made only in those cases where on the evidence 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 a 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 Court is not expected to visit the site for collecting evidence. (See:- Randhir Singh Sheoran Vs. 6th Additional District Judge, 1997(2) JCLR 860, Radhey Shyam Vs. A.D.J., Court no. 13, Lucknow and others, [2010(2) A.D.J., 758] and Sonpal Vs. 4th Additional District Judge, Aligarh and others, 1992 2 ARC, 596).
In the case of Smt. Shamshun Nisha Vs. Ist Additional District Judge, Lucknow and others 1992, (1) ARC page 423, it is held as under :
"By means of the present writ petition, the petitioner challenges the order, dated 13.05.1991, passed by Ist Additional District Judge, Lucknow, contained in Annexure No. 6 by which the petitioner's request for local inspection was rejected by the appellate Court. The appellate Court pointed out that the petitioner had been given sufficient opportunity to rebut the evidence of the expert. However, the fact is not disputed that the appeal is still pending and in appeal only an application for local inspection of the site by the Advocate Commissioner has been rejected. Therefore, in my opinion, the said order cannot be challenged in the writ petition."
The said view was further reiterated by this Court in the case following cases:-
(i) Avinash Chandra Tewari Vs. A.D.J. Court No. 3, Unnao & others, 2010 (2) ARC 84
(ii) Radha Rani Mehrotra (Smt. And 5 others Vs. Learned prescribed Authority/Civil Judge, S.D. and 2 others, 2010 (2) ARC 23
(iii) Radhey Shayam and others Vs. Additional District Judge, Lucknow and others 2010 (2) ARC 95 Further to go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole progrative of the Court to decide whether to move the same or not.
Accordingly, as it is a sole domain of the Court to issue a commission or not and the local inspection or commission can not be claimed as a matter of right by a party, so there is neither any illegality nor infirmity in the order under challenge.
For the foregoing reason, the present writ petition filed by the petitioner lacks merit and is dismissed.
In view of the abovesaid, provisions of law and keeping in view finding recorded by appellate court while rejecting petitioner's application for local inspection to the effect that appellants have still opportunity to raise the plea at the time of argument. I am of the opinion that there is no need of appointing an Advocate-Commissioner for local inspection of Building No. 133/189, Old Ganesh Ganj, Aminabad, Lucknow and building No. 566/19, jai Prakash Nagar, Alambagh, Alambagh, Lucknow.
No order as to costs.
Order Date :- 3.3.2011 Ravi/