Dr. Nardev Sharma vs Ravindra Kumar Jain

Lok Pal Singh, J

Petitioner has invoked the extra-ordinary jurisdiction of this Court under Article 227 of The Constitution of India seeking a writ of certiorari quashing the order dated 03.04.2019 passed by Civil Judge (Senior Division) Vikas Nagar, Dehradun in P.A. Case No.03 of 2017 Ravindra Kumar Jain vs. Dr. Nardev Sharma.

Facts leading to filing of present writ petition are that respondent/landlord filed an application under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short, Act No.13 of 1972) for release of premises in question on the ground of bonafide need. Petitioner/tenant contested the said application and filed his written statement. In the written statement, the petitioner/tenant denied the averments made in the release application. He also stated that the respondent/landlord is owner of many properties situated in the same vicinity and other commercial localities, out of which, some are lying vacant. Respondent/landlord filed his affidavit denying the averments made in the written statement. Petitioner/tenant moved an application paper no.49A under Section 34(d) of U.P. Act No.13 of 1972 read with Rule 22(f), stating that the respondent/landlord has seven shops on the main road of Herbatpur Vikasnagar Highway in vacant state, a non-commercial complex near the premises in question, etc., and prayed that the landlord be directed to submit the document/details of properties, mentioned in the application, before the court. Prescribed Authority, vide order dated 11.10.2018, allowed the application paper no.49A and directed the respondent/landlord to file an affidavit giving details in regard to the properties in possession of landlord. In pursuance of order dated 11.10.2018, respondent/landlord filed his affidavit. Subsequently, petitioner/tenant filed an application u/s 34 (c) and (g) of U.P. Act No.13 of 1972 read with Rule 22f U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 to appoint Advocate Commissioner/Civil Court Amin. Against the said application, respondent/landlord filed his objections. After hearing the counsel for the parties and on perusal of papers, Prescribed Authority, vide order dated 03.04.2019, dismissed the said application. While doing so, the Prescribed Authority observed that the respondent/landlord, in compliance of order dated 11.10.2018, has filed an affidavit dated 25.10.2018 giving details of his property. Petitioner/tenant has now filed the application dated 28.02.2019 after the case has been fixed for arguments and it appears that the same has been filed to delay the hearing of the case. Trial court further observed that if the petitioner/tenant wants to bring true facts before the court, he may collect evidence from Nagar Palika and Revenue department and may file the same in the court.

Learned Senior Counsel appearing for the petitioner/tenant would submit that the findings recorded by the court below while rejecting the application dated 28.02.2019 are perverse, and are liable to be set aside. He would further submit that details of eight properties were given by the petitioner/tenant in the earlier application which was allowed by the court below but the respondent/landlord filed a vague affidavit before the court. It is contended that the respondent/landlord has not complied with the order dated 11.10.2018 in its true letter and spirit. To buttress his submissions, learned Senior Counsel would place reliance on a decision of Allahabad High Court in the case of Harish Chandra Jauhari v. Sunil Bajpai and another, 2008 (3) ARC 171 and would invite attention of this Court to paras 6, 7 and 8, which are extracted hereunder:

"6. There is, therefore, a serious dispute between the parties as to the extent of accommodation available with the landlord. In such circumstances, it was necessary that an Advocate Commissioner should have been appointed to submit a report of the accommodation available with the landlord after the inspection. The application filed by the tenant should, therefore, have been allowed.

The writ petition is accordingly allowed. The order dated 27th February, 2008 passed by the Prescribed Authority is set aside. The application filed by the tenant under Section 34 of the Act is allowed. However, the Prescribed Authority shall ensure that the report is submitted by the Advocate Commissioner within a period of three weeks from the date a certified copy of this order is filed by either of the parties before it. The Prescribed Authority shall also make an endeavour to decide the application filed by the landlord under Secton 21(1)(a) of the Act, expeditiously preferably within a period of three months from the date of submission of the report by the Advocate Commissioner. No order as to costs."

Contrary to this, learned Senior Counsel appearing for the respondent/landlord would submit that pursuant to order dated 11.10.2018, the respondent/tenant has filed an affidavit before the court below indicating that except property no.1/346, Ward No.1 (within the municipality of Vikasnagar), the respondent/landlord is not having any other property and respondent/tenant is in possession over one part of said property. He would contend that another application has been moved by the petitioner/tenant just to delay the case, which has been rightly rejected by the court below.

I have heard learned counsel for the parties and perused the entire material available on file.

Section 34 (c) of U.P. Act No.13 of 1972 provides for appointment of commission for inspecting a building or its locality, or issuing commissions for the examination of witnesses or documents or local investigation.

This Court in a similar controversy in Writ Petition No.158 of 2019 (M/S) Sushil Singhal vs. Harbhagat Singh, decided on 18.03.2019, has rejected the application moved for appointment of Commission and has held that the Advocate Commissioner cannot be appointed in order to collect evidence for a party to the litigation. In the said case, this Court, while referring a to nine Judges Bench Judgment rendered in the case of Radhey Shyam and another vs. Chhabi Nath and other, 2015 (5) SCC 423, has also considered the jurisdiction of this Court under Article 227 of The Constitution of India, wherein it has been held that the remedy under Article 226/227 of the Constitution of India is not an appealable remedy and can be used in very exceptional cases where manifest miscarriage of justice has been occasioned and where there is some perversity in the order passed the Court.

A perusal of impugned order would reveal that no miscarriage of justice has been caused to the petitioner/tenant by the impugned order. In compliance of order dated 11.10.2018, the respondent/landlord has filed the affidavit wherein he has specifically stated that he is not having any other property except property no.1/346 Ward No.1, within Municipal Board, Vikasnagar. Besides the aforesaid property, neither the respondent/tenant has any property within the municipal limits of Vikasnagar nor he has any other commercial property elsewhere. Relevant portion of the affidavit filed by the respondent/tenant is extracted hereunder:-

"यह कि षपथकर्ता की सम्पत्ति सं0 1/346, वार्ड नं0 1 (अन्तर्गत नगर पालिका परिशद विकासनगर, जिला देहरादूनद्ध कें अन्तर्गत अन्य कोई व्यवसायिक सम्पत्ति नहीं है। उक्त सम्पत्ति सं01/346 के एक भाग में विपक्षी काबिज एवं अध्यासित चला आ रहा है। जो वर्तमान प्रार्थना पत्र में प्रष्नगत सम्पत्ति है। उक्त सम्पत्ति के अतरिक्त षपथकर्ता की न तो नगर पालिका परिशद विकासनगर की सीमान्तर्गत और न ही अन्य जगह कोई व्यवसायिक सम्पत्ति है।"

In the impugned order, Prescribed Authority has rightly observed that if the petitioner/tenants want to bring true facts before the court, he may obtain relevant evidence from Nagar Palika or the Revenue Department and may file the same before the court. It is well settled principle of law that burden of proof lies upon the person who asserts it and not upon the person who denies it, and it never shifts.

In view of the aforesaid discussion, I do not find illegality in the order impugned. Writ petition fails and is hereby dismissed. No order as to costs.