Allahabad High Court
Lokesh Kumar Rastogi vs Ravi Kumar And Anr. on 7 October, 2013
Bench: Ran Vijai Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 7
Case :- WRIT - A No. - 52977 of 2013
Petitioner :- Lokesh Kumar Rastogi
Respondent :- Ravi Kumar And Anr.
Counsel for Petitioner :- Atul Dayal
Counsel for Respondent :- Sumit Daga
Hon'ble Ran Vijai Singh,J.
Heard Sri Atul Dayal, learned counsel for the petitioner and Sri Sumit Daga, learned counsel for the respondents.
By means of this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the order dated 16.7.2013 passed by the learned District Judge, Meerut in Misc. Case No. 277 of 2013 (Lokesh Vs. Ravi) and the order dated 25.5.2013 passed by the Prescribed Authority/ Judge Small Causes Court Meerut in P.A. Case No. 61 of 2009 ( Ravi Kumar and other vs. Lokesh Kumar Rastogi). Vide order dated 25.5.2013 the petitioner's application (66-Ga) has been rejected whereas by the subsequent order dated 16.7.2013 the petitioner's appeal which was registered as Misc. Case No. 277 of 2013 has been rejected being not maintainable taking note of the judgment of the Apex Court in Central Bank of India Ltd. vs. Gokulchand (AIR 1967 SC 799).
The petitioner has filed an application for appointment of Amin Commission for ascertaining the fact about existence of 20 shops situated in Shankar Market, which according to the petitioners are the part of landlord's property No. 182, Abu Lane, Meerut Cantt. and out of them number of shops are vacant so that the petitioner-tenant can lead his evidence. The Prescribed Authority has rejected the petitioner's application on the ground that Commission cannot be issued for collecting the evidence on the insistence of a party. Further the same has been filed belatedly at the time of disposal of the release application.
Refuting the submission of the learned counsel for the petitioner, Sri Sumit Daga, learned counsel for the respondent has submitted that the Commission cannot be issued for collecting the evidence. Further it cannot be claimed to be issued as a matter of right.
I have heard learned counsel for the parties and perused the records.
Here in this case, it is apparent that the P.A. case is still pending and such cases are of summary in nature and decided on the basis of exchange of affidavits. In case any of the party want to bring some facts in the notice of the party, it is always open for it to state the same in the form of affidavit and file evidence in support of that.
It appears proceeding under section 21(1)(a) of the U.P. Act no. 13 of 1972 was initiated against the petitioner for vacating the shop in dispute in the year 2009 on the ground that the said shop is needed for establishing the wife of the landlord in business, the petitioner has also filed the aforesaid application to which an objection was filed by the respondent stating therein that it is only with a view to delay the proceeding of the case the application has been filed on the irrelevant grounds. The learned prescribed authority has rejected the petitioner's application on the ground that the same has been filed with a view to delay the proceeding with the further observation that the commission cannot be issued for collecting the evidence.
The petitioner has challenged the aforesaid order through appeal which has been been dismissed being not maintainable as the same has been filed against an interlocutory order. While assailing these orders Sri Atul Dayal, learned counsel for the respondent contended that the prescribed authority has erred in rejecting the petitioner's application. In his submission in such cases commission can be issued. In support of his submission he has placed reliance upon the decision of the Apex Court in Radhey Sham Rastogi vs. Ashish Kumar and another ((2008) 10 SCC 225). Attention of the Court has been invited towards paragraph no. 7 of the aforesaid judgment.
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.
This Court has reiterated the same view in Jagdish Narayan Vs. Subhash Chandra Gupta (WRIT - A No. 59785 of 2013, decided on 29.10.2013) and Vimal Gupta Vs. Piyush Khanna (WRIT - A No. 53453 of 2013, decided on 8.10.2013).
So far as the case cited by the learned counsel for the petitioner in Radhey Sham Rastogi (supra) is concerned the fact of that case is distinguishable. Otherwise also in case any thing turns on non allowing the application for appointment of Commission and the release application is allowed the petitioner shall be at liberty to raise this ground while filing the appeal challenging the release order.
In view of the forgoing discussions it cannot be said that the order passed either by the learned Prescribed Authority or the learned District Judge, Meerut is vitiated.
The writ petition is dismissed.
Order Date :- 7.10.2013
samz
