Allahabad High Court
Javed Ali vs Ahmad Urooz on 19 November, 2013
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 7
Case :- WRIT - A No. - 60566 of 2013
Petitioner :- Javed Ali
Respondent :- Ahmad Urooz
Counsel for Petitioner :- Mohammad Hisham Qadeer,M.A. Qadeer
Counsel for Respondent :- S.P.Misra
Hon'ble Ran Vijai Singh,J.
Heard Sri M.A.Qadeer, learned Senior Counsel assisted by Sri M.H.Qadeer, learned counsel for the petitioner and Sri S.P.Misra, learned counsel for the respondent.
By means of the present writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order 10.9.2013 passed by the Civil Judge (Senior Division)/ Prescribed Authority, J.P.Nagar by which the petitioner's application No. 39-C for issuing Amin Commission has been rejected.
The facts giving rise to the present writ petition are that it appears that the respondent has filed a rejoinder affidavit (Paper No. 38-C) on 3.8.2013 along with a map. In rebuttal to that the present petitioner has filed an application No. 44-C and has also annexed a map therewith (Paper No. 45-C) stating that the map filed by the respondent is incorrect.
It is contended by Sri Qadeer, learned senior counsel that release of the shop belonging to the petitioner was sought on the ground that on the roof of the petitioner's shop there is an office of the father of the respondent and he being an old man facing a great trouble in climbing the stairs. Contrary to that an application was filed by the petitioner stating therein that on the roof of the petitioner's shop there is no office of the respondent's father and it is situated near Tehsil in different building. The aforesaid position was clarified by filing rejoinder affidavit (Paper No. 38-C) along with a map. The petitioner has filed Application No. 39-C for issuing Amin Commission for spot verification as contrary stand has been taken by the rival party. The application of the petitioner has been rejected by the learned Prescribed Authority on the ground that the case is at the final hearing stage and at this stage there is no occasion to issue Amin Commission. The application has been rejected holding it as not maintainable.
Sri Qadeer submitted that if contrary stand has been taken by the rival party the only course open before the learned Prescribed Authority was to issue Amin Commission for verifying the correctness of the map and the stand taken by the parties. In his submission learned Prescribed Authority has erred in rejecting the petitioner's application.
After hearing the learned counsel for the parties I find that the proceeding seeking release of the accommodation under Section 21 (1) (a) of U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 is summary in nature and there the cases are decided only on the basis of exchange of affidavits, the applicant cannot claim the issuance of the commission as a matter of right. If reply to the rejoinder affidavit has been filed by the present petitioner annexing therewith a map, which has been accepted by the court below and there is any contrary stand, it will be in the domain of the learned prescribed authority, after considering the case of the parties either to issue commission or not for coming to the right conclusion.
This Court in the case of Tushar Kumar Shah Vs. District Judge, Kanpur Nagar (2012 (1) ARC 909) has held that the Commission cannot be issued for the purposes of collecting evidence on behalf of either party. In Jaya Kalia (Smt.) Vs. Smt. Manju Agarwal (2009(3)ARC 799), this Court has held that if the contents of the affidavit filed on behalf of the landlord are not correct, it can be rebutted on the basis of the affidavit in rebuttal.
Again in Smt. Sunder Kaur and Another Vs. Smt. Ram Kali and Others (2011(3)ALJ 165), this Court, taking note of the earlier decisions of this Court in 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), has held that 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 issuance of Commission by the Court cannot be claimed as a matter of right of any party. Again in WRIT - A No. - 53453 of 2013 (Vimal Gupta vs. Piyush Khanna) decided on 8.10.2013 and in WRIT - A No. - 59785 of 2013 (Jagdish Narayan vs. Subhash Chandra Gupta) decided on 29.10.13 this Court has taken the same view.
In view of foregoing discussions, I do not find any illegality in the order impugned.The writ petition is dismissed. However, it is also observed that if anything turns on this and the release application is allowed, it will be open to the petitioner to raise this point in appeal.
Order Date :- 19.11.2013
samz
