Writ petition challenging the rejection of an application for local inspection under Section 21 of U.P. Act No. 13 of 1972. The High Court held the rejection was valid as the application was intended to delay proceedings and facts could be proved by evidence. Petition dismissed.
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Court No. - 26
Case :- MATTERS UNDER ARTICLE 227 No. - 3412 of 2018 Petitioner :- Mohammad Ibrahim Respondent :- Ashok Kumar Agarwal Counsel for Petitioner :- Pradeep Chandra,Asha Parihar,Pratik Chandra,Ram Prakash Srivastava Counsel for Respondent :- Kamlesh Kumar Tiwari
Hon'ble Mrs. Sangeeta Chandra,J. Oral
This petition has been filed challenging the order dated 20.4.2018 passed by the Prescribed Authority / Judge Small Causes Court, Jhansi in P.A. Case No. 31 of 2014 (Ashok Kumar Agarwal Vs. Mohd. Ibrahim) and also praying for a direction to the Prescribed Authority to reconsider and decide the application no. 51-C dated 4.12.2017 for verification of evidence annexed thereto.
Sri Pradeep Chandra, learned counsel for the petitioner has argued that the respondent / landlord had filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 for release of shop no. 69/1 Khatryana, District Jhansi on 2.7.2014 which was registered as P.A. Case No. 31 of 2014.
The Release Application was contested by the petitioner / tenant by filing written statement and in the affidavit in support of the written
statement, he stated that the landlord is a rich person and he has several properties in the city of Jhansi, details of which were mentioned in paragraphs 15 to 20 of the said affidavit dated 24.5.2017 and he did not need the shop in question to be released in his favour. He had alternative accommodation where he could conduct his business.
Thereafter, the petitioner on 4.12.2017 filed an application for making spot inspection by the Amin and for verification of the documents annexed with the application which was marked as paper no. 51-C. The respondent / landlord filed an objection to the said application which was marked as paper no. 52C.
The learned Prescribed Authority / Judge Small Causes Court, Jhansi rejected the application dated 4.12.2017 and has fixed the matter on 15.5.2018 for arguments by his order dated 20.4.2018. This petition is filed by the petitioner / tenant aggrieved by the order dated 20.4.2018.
It has been argued that the petitioner / tenant had relied upon two judgments of this Court in New Meena Sahkari Awas Samiti Ltd. Lucknow Vs. Additional District Judge, Court No. 2, Lucknow 2016 (2) ARC 133 and Iqbal Ahmad Vs. Ram Naran Gera &
another 2009 (1) ARC 713 , but the learned Court below ignored the said decisions and relied upon a judgment in Lokesh Kumar Rastogi Vs. Ravi Kumar & another 2014 (2) AWC 1486 .
Learned counsel for the petitioner / tenant has placed before this Court the judgment relied upon by him before the learned Court below. One other judgment has also been placed before this Court reported in 2009 (2) ARC 74 Kishore Seth Vs. Prescribed Authority / Ist C.J. (Junior Division), Kanpur Nagar .
In the judgment cited before the Prescribed Authority Iqbal Ahmad Vs. Ram Naran Gera & another 2009 (1) ARC 713 , the landlord had filed a Release Application under Section 21 and the tenant also moved an application for spot inspection by Advocate Commissioner / Amin which were rejected. At the time of pendency of Appeal, the inspection application was rejected by the Appellate Court on the ground that similar application had been moved before the Prescribed Authority which had also been rejected.
This Court observed that even after rejection of similar application by the Prescribed Authority, the appellant was entitled to move a fresh application before the Appellate
Authority. More so, when in the ground no. 10 of grounds of the Appeal, it had been stated that the Prescribed Authority had wrongly rejected the Application for Commission to be issued. The matter was remanded to the Appellate Court to decide whether it was appropriate to allow such application on its own merits.
In New Meena Sahkari Awas Samiti Ltd. Lucknow Vs. Additional District Judge, Court No. 2, Lucknow 2016 (2) ARC 133 , this Court was considering an application moved by the plaintiffs under Order 26, Rule 9 CPC in Regular Suit No. 487 of 2005. The regular suit was filed by the plaintiffs which was dismissed on 15.11.2010. A Regular Civil Appeal No. 170 of 2010 was filed by the plaintiffs. During the pendency of the Appeal, the plaintiffs moved an application under Order 26, Rule 9 CPC supported by an affidavit for appointment of Commission to which an objection was filed by the defendant.
This Court considered judgment cited by either side and observed in paragraph 25 thus:-
" From the texture of the languages coined in Order 26 Rule 9 CPC, it is explicit that it does not make any distinction between the plaintiff and the defendant or it does not have any reference to show that a particular party viz., either the plaintiff or the defendant alone shall
file an application under Order 26 Rule 9 CPC, with a prayer to appoint a Commissioner. What it transpires is, where the Court deems a local investigation to be requisite or proper in any suit for the purpose of elucidating any matter, 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 ."
In the other judgment cited before this Court by the learned counsel for the petitioner i.e. Kishore Seth Vs. Prescribed Authority / Ist C.J. (Junior Division), Kanpur Nagar 2009 (2) ARC 74 , a Release Application was filed under Section 21(1)(a) wherein the tenant filed an application for spot inspection with regard to the accommodation in possession of the landlord. This Court without making any observation passed an order on the facts and circumstances of the case, that the accommodation in occupation of the landlord may be got inspected by the Prescribed Authority as it would facilitate the early disposal of the Release Application. The landlord was about 87 years of age and it observed that such inspection should be carried out on a particular date and also directed that the release matter be decided expeditiously within a period of three months thereafter.
Sri K.K. Tiwari, learned counsel for the
respondent on the other hand has produced before this Court the judgment relied upon by the Prescribed Authority in Lokesh Kumar Rastogi Vs. Ravi Kumar & another 2014 (2) AWC 1486 . This Court was considering a case where the Prescribed Authority had rejected the petitioner / tenant's application moved for local inspection for ascertaining the fact about the existence of twenty shops situated in Shankar Market, which according to petitioners are the part of landlord's property to ascertain that a number of shops were vacant and available to the landlord. The Prescribed Authority had rejected the petitioner's application on the ground that the Commission cannot be issued for collecting evidence on the insistence of a party and further the same had been filed belatedly at the time of disposal of the Release Application. This Court considered the fact that the Release Application was pending since 2009 and there was an observation of the Prescribed Authority that the application for local inspection had been moved only a view to delay the proceeding with the further observation that the Commission cannot be issued for collecting evidence.
This Court considered similar observations made by this Court in earlier binding
precedents, namely Tushar Kumar Shah Vs. District Judge, Kanpur Nagar 2012 (1) ARC 909 ; Jaya Kalia (Smt.) Vs. Smt. Manju Agarwal 2009 (3) ARC 799 and Smt. Sunder Kaur & another Vs. Smt. Ram Kali & others 2011 (3) ADJ 708 and other decisions relied upon in the aforecited cases, where this Court had held that the local inspection or Commission by Court is made only in those cases where on the evidence led by the parties, the Court is no able to arrive at a just conclusion either ways or where the Court feels that there is some ambiguity in the evidence which can only be clarified by making local inspection or Commission.
This Court observed that the tenant is at liberty to raise ground of availability of alternative accommodation with the landlord while filing the Appeal challenging the release order, if the release order is eventually passed by the Prescribed Authority.
Sri K.K. Tiwari has also referred to a recent judgment of this Court in Mohammad Akram Khan Vs. Appellate Authority / Additional District Judge, Raebareilly & others 2016 (117) Alld. LR 92 wherein this Court considered the provision of Section 34 of U.P. Act No. 13 pf 1972 which empowers the Prescribed Authority or the Appellate Authority
to inspect a building or issue Commission for examination of witnesses or documents or local investigation.
This Court observed that no doubt the said power is vested in said Authorities, however, it is the discretion of the Authority concerned to take recourse to the provision of Section 34(1) (c) of the Act. The Court observed that by the order impugned, such an application has been rejected with the observation that the petitioner intends to get Commission issued determining for facts or assertions which could be proved by the leading evidence before the Court concerned through affidavit.
This Court observed that the facts which could be proved or established by leading evidence by the petitioner cannot be ascertained by issuing a Commission. Issuing a Commission cannot be a substitute for leading evidence.
Having heard the learned counsel for the parties, I have gone through the order impugned passed by the Prescribed Authority.
The Prescribed Authority has observed on the basis of judgment rendered in Lokesh Kumar Vs. Ravi (supra) and also in the facts and circumstances of the case before it that the Release Application was pending since 2014, evidence had been led by all parties and only to delay the proceedings / disposal of the
Release Application, such an application for local inspection had been moved. It has therefore rejected application paper no. 57-C. I do not find any good ground to show interference in the order impugned.
It shall be open for the Prescribed Authority to consider all evidence filed earlier on affidavits by both the parties while taking an informed decision in the matter thereafter.
The Release Application can be decided on the basis of evidence led by either parties which is already on record within a period of three months from the date a certified copy of this order is produced before him.
The petition is disposed of with the aforesaid observations.
Order Date :- 16.5.2018
Arif
2 issues framed by the court
Whether the Prescribed Authority was correct in rejecting the tenant's application for local inspection/Commission to ascertain the landlord's property status.
Whether a Commission can be issued as a substitute for leading evidence via affidavit.
Colour shows how this judgement treated each authority
New Meena Sahkari Awas Samiti Ltd. Lucknow Vs. Additional District Judge, Court No. 2, LucknowRelied on¶10
New Meena Sahkari Awas Samiti Ltd. Lucknow Vs. Additional District Judge, Court No. 2, Lucknow 2016 (2) ARC 133
Iqbal Ahmad Vs. Ram Naran GeraDistinguished¶10
Iqbal Ahmad Vs. Ram Naran Gera & another 2009 (1) ARC 713
Kishore Seth Vs. Prescribed Authority / Ist C.J. (Junior Division), Kanpur NagarDistinguished¶12
Kishore Seth Vs. Prescribed Authority / Ist C.J. (Junior Division), Kanpur Nagar 2009 (2) ARC 74
Lokesh Kumar Rastogi Vs. Ravi KumarDistinguished¶11
Lokesh Kumar Rastogi Vs. Ravi Kumar & another 2014 (2) AWC 1486
Tushar Kumar Shah Vs. District Judge, Kanpur NagarReferred¶23
Tushar Kumar Shah Vs. District Judge, Kanpur Nagar 2012 (1) ARC 909
Jaya Kalia Vs. Smt. Manju AgarwalReferred¶23
Jaya Kalia (Smt.) Vs. Smt. Manju Agarwal 2009 (3) ARC 799
Smt. Sunder Kaur Vs. Smt. Ram KaliReferred¶23
Smt. Sunder Kaur & another Vs. Smt. Ram Kali & others 2011 (3) ADJ 708
Mohammad Akram Khan Vs. Appellate Authority / Additional District Judge, RaebareillyDistinguished¶26
Mohammad Akram Khan Vs. Appellate Authority / Additional District Judge, Raebareilly & others 2016 (117) Alld. LR 92
2 provisions across 1 enactments
Mohammad Ibrahim
Ashok Kumar Agarwal
Sangeeta Chandra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
