[Cites 1, Cited by 0]
Uttarakhand High Court
Hirdesh Sharma And Another ... vs Nazakat Ali Khan on 13 February, 2026
HIGH COURT OF UTTARAKHAND AT NAINITAL
HON'BLE SRI JUSTICE SUBHASH UPADHYAY
IA/5/2025 (Misc. Application)
In
CIVIL REVISION NO.74 OF 2023
Hirdesh Sharma and Another ...Revisionists/applicants
Versus
Nazakat Ali Khan ...Respondent.
Counsel for the revisionists : Mr. B.D. Pande, learned counsel.
Counsel for the respondent : Mr. M.S. Tyagi, learned Senior Counsel
assisted by Mr. Sunil Chandra, learned
counsel.
Order:
Heard on Misc. Application (IA No.5/2025), which
has been preferred by the revisionists in the pending civil
revision for issuance of a Commission. Objection by way IA
No.6/2026 has been filed by the respondent. The aforesaid
application filed by the revisionists is being considered and
decided.
2. The revisionists have preferred revision against the
order dated 10.05.2023 passed by learned Judge Small
Cause Court/ II Additional District Judge, Haldwani, District
Nainital in S.C.C. Suit No.20 of 2021, "Nazakat Ali Khan Vs.
Hirdesh Sharma and Another". The said suit was preferred by
the respondent herein (plaintiff in the suit) against the
revisionists (respondents in the S.C.C. suit) for eviction,
arrears of rent and damages. The said suit was allowed vide
order dated 10.05.2023 against which the present civil
revision has been preferred.
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3. The respondent herein has claimed that he is the
landlord / owner of House No.4-297 (at present House No.4-
54) situated at Tanakpur Road, Haldwani and the revisionists
are occupying three room, Kitchen, Latrine and Bathroom as
a tenant and rent of ₹600/- per month from 15.09.2015 to
September 2021 is due. The revisionist filed his written
statement and disputed the relationship of landlord and
tenant and contended that the property is a nazool property,
which was given to Shri Achhan Khan on lease and after his
death his wife Chhunni Begum used to collect rent from the
predecessors of the revisionists; that, after death of Smt.
Chhunni Begum the tenanted property is under the Municipal
Board; and that, earlier the suit for eviction against the
revisionist and his father was dismissed. In the evidence led
before the Court, the revisionists took a stand that the
property has been purchased by him from Shri Ranjeet Singh
and as such he is the owner of the said property.
4. By filing the IA No.5/2025, the revisionist prays
that a Commissioner be appointed by this Court to ascertain
as to whether the revisionists is residing in the house owned
by the respondent or is residing in a different house
purchased by him from Sardar Ranjeet Singh. Objection to
the said application has been filed by the respondent wherein
it has been contended that the issue regarding the tenant-
landlord relationship has already been decided wherein it has
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been held that the respondent is a landlord and owner of the
disputed property and the revisionists is the tenant in the
said property.
5. Learned counsel for the respondent contends that
the present application for appointment of commissioner is
not maintainable, however, the learned counsel for the
revisionists submits that as per Chapter 8 Rule 25 of the High
Court Rules, Order 41 of the CPC shall apply in Civil Revision
and further as per Order 26 Rule 9 CPC, this Court has the
power to issue commission. Chapter 8 Rule 25 of the High
Court Rules read as under:
"25. Civil Revisions and Appeals from Appellate
Orders.--Subject to these Rules, the procedure
prescribed in Order XLI** of the Code with respect
to appeals shall, so far as may be, also apply to
revisions and appeals from appellate orders where
such appeals are allowed under any law."
6. Learned counsel for the respondent in reply
submits that the said provision deals with the Civil Revision
and Appeals from Appellate Order whereas in the present
case a Civil Revision has been filed against the order passed
by the Trial Court in S.C.C. Suit and as the Civil Revision is
not filed against any appellate order, as such the said
provision is not applicable. He further submits that even if
Order 26 Rule 9 CPC is held to be applicable in the present
case even then as per the said provision the Court cannot
issue commission for collecting evidence and the issue which
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has been decided on the basis of evidence adduced before
the Trial Court cannot be reopened by way of appointment of
a commission.
7. Having heard learned counsel for the parties, the
Court finds force in the submission of the learned counsel for
the respondent that the present application is not
maintainable, however, having regard to the facts of the
case, the Court is of the view that dismissing the application
of the revisionist on the ground of maintainability is not
desirable and the Court proceeds to decide the application of
the revisionists on merits.
8. Perusal of the application filed by the revisionists
for appointment of Commissioner reveals that following
submissions have been made in paragraph no.2 to 4 of the
application. Paragraph no.2 to 4 of the application reads as
under:-
"2. That the case of the respondent herein is that
the revisionists are tenant of the respondent in
house no.4-297 (present no.4-54) whereas the
revisionists deny the respondent to be their
landlord. In this respect the specific averment has
been made in para no.4 of written statement.
Apart from this, the revisionist no.1 in his evidence
has stated that at present the revisionists are living
in a different house purchased by him from one
Sardar Ranjeet Singh.
3. That since the revisionists are disputing that the
house regarding which the eviction has been
sought is a different house. Therefore, so as to
ascertain as to whether the house under ownership
of respondent and the house in which the
revisionists are residing at present are same or
not, a commission is necessary to be conducted.
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4. That therefore in view of the above facts, it is
necessary in the interest of justice that this Hon'ble
Court may kindly be pleased to allow the present
application and be pleased to pass an order for
commission through a commissioner appointed by
this Hon'ble Court for the house in question and
the house in which the revisionists are residing so
as to ascertain as to whether both are same house
or different houses, otherwise the revisionists shall
suffer irreparable loss and injury."
9. In reply to the same, an objection has been filed
by the respondent wherein in paragraph no.4 and 5 of the
objections, the respondent has taken the following stand:
"4. That the contents of paragraph no. 2 & 3 of
the application are not admitted as stated and in
reply it is submitted that the issue regarding the
tenant and landlord relationship has already been
decided by the learned trial court and the
respondent is the landlord and owner of the
property in dispute. In SCC Suit no. 20 of 2021,
the learned court of 2nd Additional District Judge,
Haldwani, Nainital passed the judgment and decree
dated 10.05.2023 in favour of the
respondent/plaintiff wherein issue no. 2 was
framed and decided after examining the evidence
and statements given by the witnesses and
direction has been given to the revisionist to pay
the rent of Rs.600/- per month from 15.09.2015 to
15.08.2021 along with simple interest of 3.5% to
the respondent/plaintiff and further directed to pay
Rs. 1500/- per month as compensation till the date
of handing over the physical possession to the
plaintiff/respondent. The revisionist raised the
objection that he is not the tenant of respondent
only to avoid the payment of rent as well as
compensation. The revisionist has not vacated the
suit property till date only to harass the respondent
deliberately and intentionally while the learned trial
court passed the judgment and decree in favour of
the respondent and reason given by the revisionist
for non-vacating the suit property is not tenable
because this fact has been made clear by learned
trial court in judgment and decree dated
10.05.2023.
5. That the present application is the illegal
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effort of the revisionist to collect evidence and cure
the lacunae of his case. The court is not meant to
collect the evidence for the revisionist by issuing
the commission as prayed by the revisionist."
10. The question, which arises for consideration before
the Court, is that, as to whether application filed by the
revisionists can be considered and allowed as per the
provisions of Order 26 Rule 9 of the CPC. For ready-reference
the provisions of Order 26 Rule 9 of the CPC is extracted as
hereunder:
"9. Commissions to make local investigations.--In any suit
in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any
matter in dispute, or of ascertaining the market-value of
any property, or the amount of any mesne profits or
damages or annual net profits, the Court may issue a
commission to such person as it thinks fit directing him to
make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules
as to the persons to whom such commission shall be
issued, the Court shall be bound by such rules."
11. A plain reading of the said provision would clarify
that the authority of the Court cannot be utilized for the
purpose of gathering or collecting evidence by either party in
any proceeding. Only when the Court feels some doubt about
any material before it and it requires clarification or
elucidation then only a Commissioner has to be appointed.
12. The term elucidate means to make lucid or clear,
throw light upon, explain and enlighten. However, the object
of the local investigation is not to collect evidence and the
said power is discretionary and can be exercised depending
on the facts of each case. The Court has to look as to
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whether the said application has been filed at the belated
stage after closure of the evidence. In the present case, the
revisionist in his written statement has taken a plea that the
property was a nazool property and rent was paid to Achhan
Khan and then to his wife Chhunni Begum and after the
death of Chhunni Begum the tenanted property is under the
Municipal Board. Later on in the evidence, the revisionists
have stated that the property was purchased by him from
Ranjeet Singh.
13. The learned Trial Court framed the following issues:
"1- D;k çLrqr okn ds jsl&tqfMdkVk ds fl)kUr ls ckf/kr gS\
2- D;k oknh o çfroknhx.k ds e/; Hkou Lokeh o fdjk;snkj ds lEcU/k LFkkfir
pys vk jgs gS] tSlk fd oknh }kjk dgk x;k gS\ ;fn gksa rks çHkko\
3- D;k çfroknhx.k ç'uxr lEifÙk ij 600/& :i;k çfrekg dh nj ls
fdjk;snkj vkckn pys vkrs gS\a
4- D;k çfroknh }kjk oknh ds yS.My‚MZ ds LoRo gksus ls bUdkj fd;k x;k gS-
ftlls Hkh og ç'uxr lEifÙk ls csn[ky gksus ;ksX; gS\
5- D;k çfroknh }kjk oknh dks fnukad 15-09-2015 ls flrEcj 2021 rd dk
fdjk;k vnk ugha fd;k x;k] ftl dkj.k og ç'uxr lEifÙk ls csn[ky gksus
;ksX; gSA
6- D;k uksfVl fnukafdr 02-09-2021 dh çkfIr ds ,d ekg ds mijkUr çfroknh
ç'uxr lEifÙk ls csn[ky gksus ;ksX; gSA
7- vuqrks"k\
14. The learned Trial Court on the basis of the material
available on record and the evidence adduced concluded that
there exists relationship of landlord-tenant between the
parties and the revisionist is a tenant on the subject property
and is liable to pay rent @₹600 per month. The finding
recorded at para no.49 of the impugned order is relevant
which reads as under:
"49- ,sls esa foLr`r ppkZ ds vk/kkj ij ;g iw.kZr% fl) gksrk gS fd ç'uxr okn
esa jsl&tqfMdkVk ds fl)kUr ykxw ugha gksrs gSa rFkk bl okn ds oknh o
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çfroknhx.k ds e/; edku ekfyd / yS.My‚MZ o fdjk;snkj ds lEcU/k LFkkfir
pys vkrs gSa rFkk ;g Hkh lkfcr rF; gS fd çfroknhx.k ç'uxr lEifÙk ij
600@& :i;k çfrekg dh nj ls fdjk;snkj vkckn pys vkrs gSaA vr% fopkj.kh;
fcUnq la-1] 2 o 3 oknh ds i{k esa rFkk çfroknhx.k ds fo:) fuLrkfjr fd;s
tkrs gSaA"
15. The revisionist put a challenge to the said order
and the revisionist has made the following averments in
paragraph no.8 to 12 of the present revision, which reads as
under:
"8. That the respondent even after vacating his
house by the revisionists filed a suit for eviction,
damages and rent against the revisionists in the
Court of Judge, Small Causes bearing S.C.C. Suit
No. 20 of 2021 (Nazakat Ali Khan Vis Hirdesh
Sharma and another), claiming the revisionists to
be his tenants in building no. 4-297 present no. 4-
54. A true copy of the plaint of suit is being filed
herewith and marked as ANNEXURE NO.-2 to this
affidavit.
9. That the revisionists/defendants filed their
written statement denying all the plaint averments
and in additional statements elaborated that the
suit property is not the property of the plaintiff. A
true and typed copy of the written statement is
being filed herewith and marked as ANNEXURE
NO.-3 to this affidavit.
19 That the plaintiff/respondent herein filed his
evidence and thereafter, the revisionists also
produced evidence in favour of the revisionists. The
revisionist no. 1 in his oral evidence specifically
stated that the revisionists are not the tenants of
the plaintiff and are residing in a building adjacent
to the building of the plaintiff, which they have
purchased from one Ranjeet Singh. True and typed
copy of the oral evidence of revisionist no. 1 is
being filed herewith and marked as ANNEXURE
NO.-4 to this affidavit.
11. That apart from oral evidence the revisionists
also produced one official of from Nagar Nigam,
Haldwani namely; Jayant Kumar who in his
statement has specifically stated that house no. 4-
733, there is no mention in the municipal records
that it has any tenant. True and typed copy of the
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statement of Jayant Kumar is being filed herewith
and marked as ANNEXURE NO.-5 to this affidavit.
12. That after the evidence was concluded and the
arguments were over the Learned Judge Small
Cause Court/2nd Additional District Judge,
Haldwani decreed the suit of the
plaintiff/respondent herein by directing the
revisionists to vacate the suit premise within one
month and to pay rent @ 600/- per month from
15/9/2018 till 15/8/2021 alongwith 3.5% simple
interest. It is also directed that damages @ 1500/-
per month be also paid to the plaintiff /respondent
herein till the handing over of possession of the
suit property."
16. Thus the revisionist admits that after the closure of
evidence the suit was decided by the learned Trial Court. The
said finding of the learned Trial Court has been put to
challenge by the revisionists and the same is yet to be
adjudicated by the Court.
17. In view of the above discussion, the Court finds
that the present application for appointment of Commissioner
is misconceived at this belated stage after conclusion of
evidence and the Court does not deem it fit to exercise its
discretionary power for appointment of Commissioner.
Accordingly, the Application No.5/2025 is dismissed.
18. List this case on 27.02.2026 for hearing.
___________________
SUBHASH UPADHYAY, J.
Dt:13.02.2026 Sukhbant 9