Yupendrakalara vs Pradeep Saigal
2017 Latest Caselaw 4674 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 2
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 5868 of 2017
 

 
Petitioner :- Yupendrakalara
 
Respondent :- Pradeep Saigal
 
Counsel for Petitioner :- Harshit Pathak,Namman Raj Vanshi
 
Counsel for Respondent :- Pankaj Agarwal
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Namman Raj Vanshi, learned counsel for the defendant-petitioner and Sri Pankaj Agarwal, learned counsel for the plaintiff-respondent.

2. This petition under Article 227 of the Constitution of India has been filed praying to set aside the order dated 12.07.2017 in P.A. Case No. 48 of 2011 (Shri Pradeep Saigal Vs. Shri Yupender Kalra), whereby, the application 126-C filed by the defendant-petitioner for issue of Commission, has been rejected.

3. Briefly stated facts of the present case are that undisputedly, the plaintiff-respondent is the owner and landlord of the disputed shop in which the defendant-petitioner is a tenant. The plaintiff-respondent has filed a P.A. Case No. 48 of 2011 under Section 21(1)(a) of the U.P. Act No. 13 of 1972 on the ground of bonafide need. Parties have already led their evidences. The case was being fixed for arguments. The plaintiff-respondent had already made his submission. Now at this stage, the defendant-petitioner had moved an application 126-C for issue of Commission on the ground that certain tenanted portion in the disputed building has been re-let by the plaintiff-respondent and therefore, Commission be issued to find out the facts. This application has been rejected by the impugned order dated 12.07.2017. Aggrieved with this order, the petitioner has filed the present petition.

4. Submission of learned counsel for the defendant-petitioner is that in view of the subsequent event of re-letting by the plaintiff-respondent certain shops owned by him, the bonafide need stands disproved and therefore, issue of Commission to find out the factual position is necessary. In support of his submissions, learned counsel for the defendant-petitioner has relied upon the judgments in the cases of Dwarika Nath Soni Vs. Bhagwan Das Gupta 2003 (1) ARC 418, Krishna Deo Lal Srivastava Vs. Roohullah Maroofi & Ors 1997 (2) ARC 585, Jagat Narain Jain Vs. 4th ADJ 1980 (2) ARC 296, New Meena Sahakari Awas Samiti Ltd. through its President Vs. Addl. District Judge, Court No. 2, Lucknow 2016 (2) ARC 133, Hari Shankar Sharma Vs. Special Judge, Moradabad & Ors 1983 (2) ARC 13, Kanhaiya Lal Kapoor Vs. Ivth Additional District Judge, Bareilly & Ors 1988 (2) ARC 496 and a judgment of Hon'ble Supreme Court in the case of Hashmat Rai & Anr Vs. Raghunath Prasad AIR 1981 SC 1711.

5. Learned counsel for the plaintiff-respondent submits that apparently the application 126-C was filed for collecting evidence which is impermissible. He denied the alleged re-letting and submits that the application 126-C was moved malafidely by the defendant-petitioner to delay conclusion of the case. He is avoiding his arguments.

6. I have carefully considered the submissions of learned counsels for the parties and perused the record before me.

7. Perusal of the application 126-C filed by the defendant-petitioner shows that in the application, allegation has been made that certain tenanted portion in the building owned by plaintiff-respondent has been re-let and therefore, it is expedient in the interest of justice that before argument, the Commission be issued and a report may be called for with respect to the situation on spot. The relevant portion of the application 126-C dated 12.07.2017 filed by the defendant-petitioner as Annexure No. 5 to the petition is reproduced below:

^^vr% izkFkZuk gS fd U;k;fgr esa bl okn esa foi{kh cgl ls iwoZ vehu vnkyr dks crkSj deh'ku fu;qDr fd;k tkdj vkosnu esa vafdr rF;ksa ds vk/kkj ij ekSdk dh foLr`r fjiksVZ i=koyh ij eaxkbZ tkos rFkk vehu egksn; dks funsZf'kr fd;k tkos fd mUgsa tks ckr ekSdk ij crkbZ ;k fn[kkbZ tkos viuh vk[;k esa vafdr djrs gq, U;k;ky; }kjk fu/kkZfjr vof/k esa vk[;k izLrqr djsa vfr d`ik gksxhA^^

8. It is settled law 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 issue of 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.

9. The principles aforementioned is supported by the law laid down by this Court in Mohd. Ali Vs. Prescribed Authority, Moradabad and others, Writ - A No. 31854 of 2017 decided on 29.08.2017 and in M/s. Gujrati Namkeen Bhandar Vs. Ratan Lal Gupta & 3 Ors (Matters Under Article 227 No. 5625 of 2017) decided on 12.09.2017. No such circumstances exist in the present case which may require issue of Commission.

10. The aforesaid P.A. Case is pending before the Prescribed Authority from more than 6 years. Evidences have already been led by the parties and the matter is being listed for final arguments. The argument on behalf of the plaintiff-respondent has already been submitted as per observations made in the impugned order. Instead of advancing arguments, the petitioner has filled the application 126-C for issuance of Commission. This appears to be with the purpose to delay the conclusion of the case.

11. The proceeding under the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 is a summary proceeding which is statutorily required to be concluded expeditiously. The intention of the legislature for expeditious disposal of application under Section 21(1) of the Act is evident from Sub-rule (3) of Rule 15 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Rules, 1972 which provides that such application, as far as possible, be decided within 2 months from the date of its presentation. Thus, it is evident that expeditious disposal of application under Section 21(1) of the Act is the statutory mandate. The P.A. Case filed by the plaintiff-respondent is pending before the court below from more than 6 years.

12. That apart, no evidence regarding alleged re-letting has been led by the plaintiff-respondent. Apparently, the application 126-C has been filed before the court below to collect evidence and to delay the conclusion of the case. Under the circumstances, the application has been lawfully rejected by the court below.

13. The judgments relied by learned counsel for the defendant-petitioner in the case of Krishna Deo Lal Srivastava (supra), New Meena Sahakari Samiti Ltd., Lucknow (supra), do not relate to eviction matter. The judgment of Hon'ble Supreme Court in the case of Hashmat Rai and another (supra) is entirely on different set of facts and does not lay down the law that a Commission may be issued for collecting evidence. The judgment in the case of Kanhaiya Lal Kapoor (supra) involved the controversy with regard to the correctness of the order of appellate authority who passed the order by recording an abrupt conclusion that the need of landlord is not genuine. In the case of Hari Shankar Sharma (supra) evidences were led placing on record the subsequent event that one of the tenant has vacated his portion in his possession which is now in possession of the landlord. Thus, this judgment also has no application on the facts of the present case. The case of Jagat Narain Jain (supra) involved the controversy with regard to admissibility of additional evidence. The case of Dwarika Nath Soni (supra) involved the facts that the landlord has constructed shops in the residential building. It was held that local inspection or Commission is not a right of any party rather it is the discretion of the court and on the facts of the case it was found that the discretion should have been exercised. Thus, the judgments relied by learned counsel for the defendant-petitioner have no application on the facts of the present case.

14. In view of the above discussion, I do not find any merit in this petition. Consequently, petition fails and is hereby dismissed.

Order Date :- 20.9.2017

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