Mohd.Islam vs Prescribed Authority/C.J.(S.D.) Unnao and another

Anil Kumar J.

Heard Sri Adnan Ahmad, learned Counsel for the petitioner and Smt. Ketki Srivastava on behalf of respondent No. 3.

By means of the present writ petition, the petitioner has challenged the order dated 25.5.2010 (Annexure1) passed by O.P, No. 1/Prescribed Authority/Civil Judge (Sr Div.) Unnao by which the petitioner''s application for issuance of Advocate/Commission for inspection of the spot has been rejected.

In brief, the facts of the present case are to the effect that the controversy of the case relates to two shops numbered as 181 and 182 situated at Mohalla Moti Nagar Pd. Baldev Bihari Road, Station Road, I.B.P. Chauraha, Unnao, the O.P. No. 2 is the owner/landlord of the said shops, he moved an application before the Prescribed Authority/Civil Judge (Sr. Div.), Unnao under section 21 (2) of the Urban Building (Regulations of Letting, Rent & Eviction) Act, 1972 on 2.1.2008 and on the basis of the same PA Case No. 1/2008 has been registered before the OP. No. 1.

In the said case, the objections has been filed by the petitioner and thereafter he had filed the additional objection in order to support his case. On 10.5.2010 petitioner moved an application for issuing an Advocate Commissioner for inspection of the spot, the same was rejected by O.P. No. 1 by order dated 25.52010, hence the present writ petition has been filed.

Sri Adnan Ahmad, learned Counsel for the petitioner while chalienging the order dated 25.5.2010 submits that the impugned order in question is illegal, invalid and against the settled principle of law.

He further submits that as there is serious dispute between the parties as to the extent of accommodation available with the landlord/opposite party No 2. as such it is necessary that an Advocate Commissioner should have been appointed to submit a report in regard to the accommodation available with the landlord after the inspection. So, it is necessary that the Commission be issued to bring the correct facts on record and to ascertain the bonafide need and comparative hardship between the parties accordingly the order dated 25.5.2010 is liable to be set aside,

In order to support his submission he relied on the following cases:

(a) Harish Chandra Jauhari v. Sunil Bajpai and another, 2008(71) ALL LR 444, this Court held that 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,

(b) Kiskore Seth v. Prescribed Authority/1st C.J. (Jr.D.), Kanpur Nagar and another, 2009(2) ARC 74=2009(74)=2009(75) ALL LR 251 this Court held that in view of the matter, the order dated 30th July, 2007 is hereby set aside. The application filed by the petitioner for spot inspection of the accommodation in possession of the landlord through Vakil/Commissioner is allowed. The prescribed authority shall appoint a Commissioner for spot inspection.

I have heard the Counsel for the petitioner and perused the record.

From the perusal of the order dated 25.5.2010 passed by O.P. No, 1 which is under challenge in the present writ petition while rejecting the application of the petitioner for issuing the Advocate Commissioner, a categorical finding of fact has been given that in respect to the shops owned by the respondent/landlord and after giving the details in respect to the said shops, the O.P. No. 1 had came to the conclusion that there is no necessity for issuing an Advocate Commissioner for the said purpose. It wart further mentioned in the impugned order that so far as the Chakki Karkhana is concerned from the report of the Advocate Commissioner it cannot be ascertained who is the owner of the same and further in reaped to the possession of the same, the report of the Advocate Commissioner cannot be read as evidence and in this regard the petitioner can file documentary evidence by way of evidence and on the basis of the same the O.P. No. 1 had rejected the application moved by the petitioner for issuing of the Advocate Commissioner.

It is well settled proposition of law that when an application for local inspection is moved in a case, then the Court concerned has a discretion to issue the same or not keeping in view the facts of the case and the evidence led by the parties. It is upto the Court concerned as to whether local inspection is necessary to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection and upto what extent the same is necessary for disposal of the controversy involved in the case,

Thus, it is not mandatory on the part of the Court to allow each and every application which is moved for local inspection and the same cannot be claimed as a matter of right by the parties. Further, while allowing or rejecting the same, the Court should also lake into consideration the motive and reasons behind moving the same coupled with the factors, e.g. for what purpose it has been moved. The said guidelines have been followed by the Court below while passing the order dated 25.5.2010 by which the application for is of commission for inspection of spot has been rejected

In the case of Ranbir Singh Sheoran v. VIth Additional District judge, Nagar and others, 1997(31) ALR 116 (Alld.) this Court had held as under :

"The local inspection by Court is made only in those cases where on the evidence led by the parties Court is not able to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making inspection. Local inspection by the Court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence."

In the case of Son Pal v. Vth Additional District Judge, Aligarh and others, 1999(2) ARC 596. this Court has held as under:

"Whether or not a local inspection or commission is necessary for a just decision of case can only be decided after the Quit hears the argument and it is for the Court, thereafter, to decide whether to go for local inspection or to issue commission. Instead of addressing arguments, it appears that the petitioner is causing unwarranted delay in disposal of the appeal"

Further, the case law namely Harish Chandra Jauhari v. Sunil Bajpai and anothers, 2008(71) All Lr 444 and Kishore seth v. Prescribed Authority/Ist C.J. (Jr.D.) Kanpur Nagar and another, 2009(2) ARC 74=2009(75) All LR 251 which are cited by the Counsel for the petitioner in support of the case are not applicable on the facts and circumstances of the case, as such the petitioner cannot derive any benefit from the same.

In view of the abovesaid facts, I do not find any illegality or infirmity in the order which is under challenge in the present case. Accordingly, the present writ petition lacks merit and the same is dismissed.

No order as to costs.