Leela Devi (Smt.) vs Smt. Kamla and Another

Vineet Kothari, J.—This writ petition has been filed under Art. 227 of the Constitution of India against the order dtd. 11.9.2012 in eviction matter filed by the respondent-landlord, namely, case No. 724/2012-Smt. Kamla vs. Smt. Leela Devi in respect of suit premises, a residential house situated at Deep Marg, behind Kabra School, Paota "A" Road, Jodhpur. By the impugned order, the Rent Tribunal has rejected the application of tenant for appointment of Commissioner under Order 26 Rule 9 C.P.C. on the ground that the said application cannot be allowed for the purpose of collecting evidence on behalf of either of the parties including the defendant-tenant.

The learned counsel for the petitioner-defendant-tenant Mr. J. Gehlot relying upon the decision in the case of Shankar Lal Vs. Shri Narbada Shankar and Others, and Tarn Devi vs. Rent Tribunal, Ajmer reported in 2011(1) DNJ (Raj.) 13 submitted that since in the residential house only the defendant tenant resides, whereas in strip of land attached with the said residential house, another person namely, Smt. Chhoti Devi resided, therefore, in absence of such specification of suit premises for which eviction was sought, the learned Court below ought to have appointed Commissioner to ascertain the actual occupancy of suit premises by the defendant-tenant or Smt. Chhoti Devi, which would have facilitated the clear demarcation of the suit property and would have served the ends of justice. He submitted that this Court has allowed such appointment of Commissioner in the decisions cited supra and it would have served the cause of the plaintiff only, if such Court Commissioner was so appointed.

On the other hand, Mr. O.P. Mehta, learned counsel appearing for the respondent-landlord relying upon another decision of this Court in the case of Prem Ratan Vs. Rent Tribunal and Another, submitted that the learned Rent Tribunal has rightly held that the Commissioner cannot be appointed for collecting evidence for either of the parties and it is open to the respective parties to lead their respective evidence in their own manner before the Rent Tribunal. Therefore, the learned Rent Tribunal was justified in rejecting the said application and more over the same being in the exercise of discretion vested in the Rent Tribunal, the same does not require any interference by this Court under Art. 227 of the Constitution of India.

Having heard the learned counsels, this Court is of the opinion that the learned Court below cannot be faulted in passing the impugned order dtd. 11.09.2012 and rejecting the application of the petitioner-tenant for appointment of Commissioner under Order 26 Rule 9 C.P.C. As to who is in occupation of suit premises in question and strip of land purchased by landlord is not the relevant issue at this stage. The defendant-tenant is of course free to lead evidence in this regard during the course of trial before the learned Rent Tribunal. Whether her relative or even independent person like Smt. Chhoti Devi resides in the back of the house itself or not is not a question to be decided at this stage, nor any such evidence except as led by the defendant or plaintiff is relevant. The appointment of Commissioner is always in the discretion of Court concerned and if the Court is of the opinion that the report of the independent Commissioner can help it in arriving at correct conclusion, it can always do so. Neither any mandamus in this regard can be given by the superior Courts nor such exercise of discretion can be normally interfered with in supervisory jurisdiction under Art. 227 of the Constitution of India.

The coordinate Bench of this Court in the case of Prem Ratan (supra) in rent matter held that in such case, the Commissioner cannot be appointed to collect evidence about the fact of occupancy of premises can be brought on record. The relevant extract of said judgment is quoted before for ready reference:

Various proceedings were taken before the Rent Tribunal in the process of adjudication of the eviction petition and it appears that the landlord did not produce the purported will dt. 10.11.2005 and the map of the premises relied upon by him in the eviction proceedings for his substitution in spite of a direction of the Court in this regard issued on 26.08.2009 and took a stand on the tenant''s application for production of the same that the same were not available with him.

In these circumstances, the tenant moved an application under Order 26 Rule 9 C.P.C. requesting the Court to appoint a Commissioner for inspection of House No. 1583 so that the truth of "occupancy of the premises can be brought on record" which according to him had a bearing on merits of the eviction petition as filed.

Vide order dt. 24.08.2011, the Rent Tribunal dismissed the application on the ground that an application under Order 26 Rule 9 C.P.C. could not be utilized for gathering evidence for any party in the eviction proceedings-in the instant case-tenant. The Rent Tribunal held that it was for the tenant to bring his defence and on the basis of the totality of the evidence before the Tribunal, the suit for eviction would be adjudicated

On the other hand, the judgment relied upon by the learned counsel for the petitioner-tenant Mr. Jitendra Gehlot in the case of Tara Devi (supra) is distinguishable on facts because in that case, the Court has only held that Section 21(3) gives powers to the Rent Tribunal to regulate its own procedure and such power would include power of appointment of Commissioner also and therefore, the Tribunal is free to appoint the Commissioner, in case it is considered appropriate by it. This judgment is of little avail to the learned counsel for the petitioner. No such mandamus was given in that case, but on the contrary, the appointment of Commissioner which was made by the learned Tribunal and was challenged before this Court and such challenge was negatived with the dismissal of the writ petition. The other judgment relied upon by the learned counsel for the petitioner in the case of Shankar Lal vs. Narbada Shankar (supra), wherein this Court dealing with a suit for specific performance relating to mines held that the purpose of Order 39 Rule 7 C.P.C. is to maintain and preserve and inspect the subject matter of suit property particularly in view of property being a mine in question. The facts of said case are obviously distinguishable from the facts of the present case and determination and proper demarcation of mining area was considered appropriate by this Court to get report of the Commissioner under Order 39 Rule 7 C.P.C.

In the present case, the rejection of said application of the tenant on the ground narrated in the impugned order are fully supported by the judgment of this Court in the case of Prem Ratan (supra) which turned on almost similar facts as involved in the present case. Therefore, respectfully following the view of coordinate bench of this Court in the case of Prem Ratan (supra), this Court is not inclined to interfere with the impugned order rejecting tenant''s application under Order 26 Rule 9 C.P.C. under Art. 227 of the Constitution of India. This Court does not find any force in the present writ petition. Consequently, the present writ petition is dismissed. No order as to costs. A copy of this order be sent to the Rent Tribunal below forthwith.