Balbir Kaur and Others vs Pushpa Widge and Others

Satish Kumar Mittal, J.—The petitioners have filed this petition under Article 227 of the Constitution of India for setting aside the order dated 10.12.2005, passed by Rent Controller, Amritsar, whereby their application under Order 26 Rule 1 and 4 and Order 16 Rule 19 of the CPC for appointment of the Commissioner to record the statement of Kanti Lal has been dismissed.

In this case, the petitioner filed two different ejectment applications u/s 13 of the East Punjab Urban Rent Restriction Act, 1949 against Parmodh Kumar, the predecessor-in-interest of the respondents, for his ejectment from the shop in question on the ground of non-payment of rent and making additions and demolition of the roof of the demised shop. These two petitions were field because of non-payment of rent for two different periods. During his evidence, the respondent denied the execution and his signatures on the letter dated 1.4.1980, which according to the petitioners was issued by the respondent to Kanti Lal. In rebuttal evidence, the petitioner wanted to examine one Sukhjinder Singh, a handwriting expert and Kanti Lal to prove that the said letter bears signatures of the respondent Parmodh Kumar. The respondent allege this letter to be forged and fabricated one. On the additional issue as to whether the amount of Rs. 5,470/- and interest tendered by the respondent is liable to be refunded or not, the petitioners want to prove the signatures of the respondent on the aforesaid letter. The petitioners could not examine the said witness Kanti Lai because he is living at.Mumbai. Therefore, they filed an application under Order 26 Rule 9 and Order 16 Rule 19 C.P.C. for appointment of Commission to record the statement of Kanti Lai on ground that the said witness is suffering from the attack of paralysis and is an old man, therefore, he cannot bear long journey due to his sickness and infirmity. The said application has been dismissed on 10.12.2005. Hence, this petition has been filed by the petitioners.

Counsel for the petitioners submits that the petitioners could not examine Kanti LaJ because he is suffering from the attack of paralysis and is an old man and in this regard, he himself sent a medical certificate by post to the Court. Learned Counsel submits that the petitioners are ready to bear the air fair expenses of the Commission and in the interest of justice, the said witness Kanti Lai, who is now residing at Mumbai, should be ordered to be examined on commission.

On the other hand, counsel for the respondents, while referring to two Division Bench decisions of this Court in Harvinder Kaur and Another Vs. Godha Ram and Another, and Pritam Singh and Another Vs. Sunder Lal and Others, submits that the order refusing to appoint the local commissioner under Order 26 Rule 9 C.P.C. is not revisable u/s 115 C.P.C., therefore, such an order should not be interfered now under Article 227 of the Constitution of India. In this regard, he further relied upon a latest decision of this Court in Hari Om Vs. Minish Kumar, In the said case also, petition under Article 227 of the Constitution of India was filed against the order dismissing the application for appointment of local commissioner under Order 26 Rule 9 CPC and it was observed by this Court that if a revision petition u/s 115 CPC against the impugned order is �not maintainable, then by mere change in the head-note of the petition, the substance cannot be replaced to wriggle out from the rigors of law which is well settled that no revision petition u/s 115 CPC is maintainable.

After hearing the arguments of learned Counsel for the parties and going through the impugned order and keeping in view the aforesaid legal position, I do not find any ground to interfere in the impugned order in exercise of the superintending jurisdiction of this Court under Article 227 of the Constitution of India. The petitioners could not show any grave injustice caused to them. In this case, the ejectment application was filed in the year 1991. In view of this fact, the Rent Controller, in any opinion, has rightly dismissed the application, particularly in the facts and circumstances of the case, when the case is very old and the parties are deliberately delaying the matter. Thus, I do not find any ground to interfere in the impugned order.

Dismissed.