Allahabad High Court
Dr. Prabhat Kumar Sharma vs Additional District Judge-5, ... on 30 July, 2018
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 30
Case :- MATTERS UNDER ARTICLE 227 No. - 5136 of 2018
Petitioner :- Dr. Prabhat Kumar Sharma
Respondent :- Additional District Judge-5, Saharanpur And 2 Others
Counsel for Petitioner :- Ashish Kumar Singh,Ajay Kumar Singh
Hon'ble Vivek Kumar Birla,J.
Heard learned counsel for the petitioner and perused the record.
Present petition has been filed challenging the order dated 5.4.2018 passed by the Additional District Judge, Court No. 5, Saharanpur in Rent Control Appeal No. 02 of 2017 (Pankaj Sharma vs. Dr. Prabhat Kumar Sharma).
By the impugned order, the application to summon the advocate/admin commissioner's report has been rejected by the lower appellate Court.
Drawing attention to the order of this Court dated 6.5.2016 passed in Writ-A No. 20437 of 2016 (Dr. Prabhat Kumar Sharma vs. Pankaj Sharma and another), submission of the learned counsel for the petitioner is that after the release application was dismissed, the application could have been considered by the lower appellate Court in appeal, therefore, rejection of this application on the ground that the applicant has concealed the fact of the order passed by this Court and that the application has been filed after a considerable delay, is improper and illegal. Submission is that this observation of the lower court below is incorrect, inasmuch as release application was dismissed and therefore, it is now only in appeal this application could have been considered and there was no concealment mush less the deliberate concealment of this fact by the petitioner herein.
The earlier order dated 6.5.2016 passed in Writ-A No. 20437 of 2016 (Dr. Prabhat Kumar Sharma vs. Pankaj Sharma and another) is quoted as under:
"The order dated 6.4.2016, passed by Prescribed Authority, Saharanpur in P.A. Case No.19 of 2014, (Pankaj Sharma & Anr. v. Dr. Prabhat Kumar Sharma) is under challenge, whereby an application Paper No.38Ga filed by the petitioner, the defendant in P.A. Case No.19 of 2014 has been rejected.
By means of the said application, it was asserted by the tenant that the landlord had constructed four shops in the disputed accommodation out of which three are vacant. The tenant made an effort to get the municipal assessment extract of the building in question but could not obtain the same. The landlord in his affidavit had pleaded that there are three shops in the disputed accommodation and this fact is incorrect. The prayer is to call upon the landlord to bring the Scale Map and other documents on record so that the correct picture of the building in question can be placed on record. This application was rejected by the Prescribed Authority with the finding that till date, the petitioner did not file his evidence. It was kept open for the defendant/petitioner to bring these facts by filing his affidavit in evidence.
No infirmity is found in the order impugned.
However at this stage, learned counsel for the petitioner submits that the petitioner has an apprehension that at a later stage, in case, there would be a requirement to summon the Scale Map in order to ascertain the correct position of the accommodation in question because of the findings recorded by the Prescribed Authority in the order impugned, he may suffer.
The apprehension raised is unfounded as it is kept open for the petitioner to bring the facts asserted in the said application on record by way of evidence.
After the evidence are led by the parties, it is always open for the Court to look to the facts and call for a report to ascertain the correct position of the accommodations. It is always the discretion of the concerned Court to call for the Commissioner's report if in case, any doubt arises in its mind.
No such stage has come and as such, there is no justification to issue any direction.
Dismissed as such."
In the aforesaid order, rejection of the application of the same nature filed before the trial Court was upheld by this Court, however, it was left open that it is always open for the Court to look into facts and call for such a report in case any doubt arises in its mind.
In such view of the matter, I do not find any good ground to interfere in the impugned order, which is purely interlocutory in nature and is not contrary to the intention of this Court as expressed in the above noted order dated 6.5.2017.
Present petition is devoid of merit and accordingly dismissed.
However, it is made clear that in case the Court is of the opinion that any such Commissioner report is required, the Court may exercise its own mind without being influenced by any of the observations made in this order.
No order as to costs.
Order Date :- 30.7.2018
Abhishek
