Allahabad High Court
Hari Kishore vs Smt. Subhasini Devi And 2 Others on 6 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1525, (2019) 134 ALL LR 817, (2019) 2 ALL RENTCAS 305, (2019) 7 ADJ 762 (ALL)
Author: Y.K.Srivastava
Bench: Yogendra Kumar Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 58 Case :- WRIT - A No. - 63073 of 2017 Petitioner :- Hari Kishore Respondent :- Smt. Subhasini Devi And 2 Others Counsel for Petitioner :- Pulak Ganguly,Umesh Chandra Pandey Counsel for Respondent :- T.A.Khan Hon'ble Dr. Yogendra Kumar Srivastava,J.
1. Heard Sri Rahul Mishra, holding brief of Sri Umesh Chandra Pandey, learned counsel for the petitioner and Sri T.A.Khan, learned counsel for the respondents.
2. The present petition seeks a direction for setting aside the order dated 8.12.2017 passed by the Additional District Judge, Court No. 1, Moradabad in S.C.C. Revision No. 19 of 2012 (Hari Kishore Vs. Subhashini Devi and others) with a further prayer for a direction to the court below to call for a report of the Executive Engineer, PWD sought to be adduced by the petitioner and then to decide the S.C.C. Revision No. 19 of 2012.
3. Briefly stated the facts of the case are that SCC Suit No. 1 of 2007 was instituted before the Judge Small Cause Court, Moradabad seeking a relief of eviction of the petitioner from the shop in question together with the arrears of rent and water tax.
4. Upon an application (Application No. 7/C/2) dated 2.1.2007 filed by the petitioner, the trial court issued a commission, and in terms thereof the Civil Court Amin filed his report (Paper No. 33/C/2), which report was confirmed, subject to evidence, vide order dated 23.10.2007.
5. Contention of the learned counsel for the petitioner is that an application (Application No. 81/C/2) had been moved by the petitioner with a prayer for issuance of a commission to the Executive Engineer, PWD Chandausi (Sambhal) for calling an expert/technical opinion regarding the period of construction of the disputed shop so as to ascertain as to whether the shops in question had been constructed afresh or not.
6. Objections (Paper No. 82/C/2) were filed by the respondents mainly on the ground that in terms of earlier order passed by the Judge Small Cause Court on an Application No. 7/C/2 moved by the plaintiff-landlord a commission had been issued to the Civil Court Amin and he had filed his report, Paper No. 33/C/2, which was taken on record by the trial court and the said report had been confirmed, subject to evidence, vide order dated 23.10.2007.
7. It is not disputed by the counsel for the petitioner that the earlier commission report submitted by the Civil Court Amin had been confirmed by the trial court subject to evidence vide order dated 23.10.2007. The counsel for the petitioner has not been able to point out as to why a second commission was required to be issued for the same purpose when the earlier commission report had been accepted and confirmed by the trial court.
8. It is well settled that it is the sole domain of a court to issue a commission or not and application for local inspection or issuance of a commission cannot be claimed as a matter of right by a litigant. The case set up by a litigant is to be proved by him by adducing evidence thereof and the court cannot come to the aid of a litigant for the purpose of collecting evidence. It is only when the Court feels that a spot inspection would be necessary for a proper and effective adjudication of the dispute and to arrive at a just conclusion, it may issue a commission, but it is not a right vested in the litigant.
9. In the case of Ranbir Singh Sheoran Vs. VIth Additional District Judge, Muzaffar Nagar & Ors.1, it has been 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."
10. Again in the case of Son Pal Vs. Vth Additional District Judge, Aligarh & Ors.2, it has been 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 Court 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."
11. The same view has again been reiterated in the case of Avinash Chandra Tewari Vs. A.D.J., Court No. 3, Unnao & Ors.3. wherein it was held as follows :-
"To go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole progrative of the Court to decide whether to move the same or not. Hence, it is late in a day to quarrel that it is not mandatory on the part of the Court to issue commission. When an application is moved for the said purpose. The local inspection or commission 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 local inspection or commission. Local inspection or issue a commission 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."
12. In the facts and circumstances of the case, the earlier commission report having been confirmed by the trial court subject to evidence, there was no occasion for making a prayer for issuance of another commission.
13. Counsel for the petitioner has not been able to point out any material error or illegality in the order impugned which may warrant interference.
14. No other point has been argued by the counsel for the petitioner.
15. The petition is devoid of merits and is, accordingly, dismissed.
Order Date :- 6.5.2019 Pratima (Dr.Y.K.Srivastava,J.)