Vinod Kumar Chhabra vs Managing Committee, Arya College, Panipat (Regd.)

G.S. Sandhawalia, J.—The present petition filed by the tenant is directed against the order dated 19.11.2011 whereby the application for appointment of a Local Commissioner to give report regarding vacant land lying between the college building and railway line has been dismissed by the Rent Controller, Panipat.

The petitioner, who is a tenant in shop No. 2 is defending the eviction petition filed on the ground of personal necessity by the Managing Committee, Arya College, Panipat. The tenant filed the application dated 02.06.2011 whereby it is contended that his evidence is going on and during the evidence of AW1, all questions had been put to him regarding the carving out the plots to sell the land, the vacant land lying in the colony and most of the building even at present is lying vacant, and therefore, the need to get a Local Commissioner appointed who would give a report to that effect. The said application has not found favour with the Rent Controller, Panipat.

Counsel for the petitioner contends that since the landlord has concealed material facts, therefore, the Rent Controller, Panipat was in error in declining the application. The reasoning given by the Rent Controller, Panipat is that the tenant is to prove the pleadings in his evidence and he is not to get his evidence collected through a Local Commissioner appointed by the Court. It has also been noticed that the application has been moved when the case was fixed for evidence of the respondent with last opportunity. The Rent Controller has rightly relied upon the judgment of this Court in Bhajan Singh Vs Avtar Singh Kolar 2010 (2) RCR (Civil) 673 wherein it has been held that it is not permissible in law for the tenant to seek direction from the Court to create evidence in their favour.

The reasoning given by the Rent Controller, Panipat cannot be said to be perverse. Once the tenant is defending the eviction petition, it is for him to produce the evidence and show from the cross-examination that there is sufficient accommodation in the hands of the landlord and that his act is not bona fide. The process of Court cannot be used to get evidence Even otherwise, the issue of appointment of a Local Commissioner is not revisable and even the present revision petition is not maintainable in view of the law laid down by the Division Bench of this Court in Pritam Singh & another Vs Sunder Lal & others 1990 (2) PLR 191. The Division Bench approved the earlier view laid down in Harvinder Kaur Vs Godha Ram ILR 1979 (1) Punjab & Haryana 147 and held as under:

After going through the Judgments cited in the reference order, we do not find that the earlier Judgment in Harvinder Kaur''s case (supra) requires any re-consideration. The order refusing to appoint a Local Commissioner does not decide any issue, nor adjudicates rights of the parties for the purpose of the suit and is, therefore, not revisable. The distinction sought to be made by the learned Single Judge in view of the Judgment in M/s Sadhu Ram Bali Ram''s case (supra) clearly noticed by the Division Bench in Harvinder Kaur''s case (supra) and it was observed,-

It may be observed that the facts of M/s Sadhu Ram Bali Ram''s case were different as in that case the onus of an issue had been wrongly placed and while deciding that question, it was held that such an order would be revisable.

Apart from that, placing the onus of an issue has something to do with the rights of the parties whereas refusing to appoint a Commission under Order 26, Rule 9, Code of Civil Procedure, has nothing to do with the rights of the parties as such. It is the discretion of the Court to appoint a Commission thereunder and if the Court refuses to appoint a Commission, then no right of any party can be said to be prejudiced as such.

In M/s Sadhu Ram Bali Ram''s case (supra), it was held that when the matter is looked at keeping in view the provisions of the Evidence Act, then a decision given by the trial Court on the placing of onus of an issue wrongly certainly adjudicates for the purpose of the suit, some right or obligation of the parties in controversy and such an order would fall within the words "case decided". Under the circumstances, the opinion referred to stands already answered by the Division Bench of this Court in Harvinder Kaur''s case (supra) and we do not think that it requires reconsideration.

The said view has been consistently followed by this Court in Sumer Chand Jain Vs Vishnu Bhagwan Mangla 2006 (2) PLR 844 & Bant Singh @ Balwant Singh & another Vs Raghubir Singh & others 2008 (4) PLR 336.

Accordingly, the present revision petition is dismissed since there is no illegality and impropriety in the order passed by the Rent Controller which would warrant interference in revision.