Allahabad High Court
Shankar Lal Harayan vs Ashish Kumar Agarwal on 24 April, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:72221 Court No. - 50 Case :- MATTERS UNDER ARTICLE 227 No. - 4452 of 2024 Petitioner :- Shankar Lal Harayan Respondent :- Ashish Kumar Agarwal Counsel for Petitioner :- Kartikeya Saran,Ujjawal Satsangi Counsel for Respondent :- Rama Goel Bansal,Shalini Goel Hon'ble Neeraj Tiwari,J.
1. Heard learned counsel for the petitioner and Ms. Rama Goel Bansal, learned counsel for the respondent.
2. Present petition has been filed with following relief;
"(i) Issue an appropriate order or direction, calling for the record and setting aside the impugned order dated 01.03.2024 passed by Prescribed Authority/ Small Causes Court Judge, Jhansi in Prescribed Application No. 22 of 2015 (Ashish Kumar Agarwal Vs. Shankar Lal Harayan)."
3. Learned counsel for the petitioner submitted that P.A. Case No. 22 of 2015 has been filed based upon bonafide need. He next submitted that during pendency of P.A. case, plaintiff- respondent has purchased another Shop No. 252 (New No. 271). He next submitted that after purchase of new shop, now the plaintiff- respondent is having alternative accommodation and he is running the business from the said shop after demolition of wall between the shops. He next submitted that petitioner has filed Application No. 97C on 01.03.2023 specifically praying for appointment of Amin Commissioner for inspecting the premises, which has been rejected. He next submitted that to verify the bonafide need, it is required to appoint the Amin Commissioner. In support of his contention, he has placed reliance upon the judgment of Lucknow Bench of this Court in the matter of New Meena Sahkari Awas Samiti Ltd. Vs. Addl. District Judge, Ct. No. 2 Lko and others; 2016 (6) ADJ 595. He also placed reliance upon the judgment of Madras High Court in the matter of Shanmugathai Vs. Kamalammal and others; 2017(2) CTC 353.
4. Per contra, learned counsel for the respondent submitted that case was filed in the year 2015, affidavit of witness has been filed and case was listed for argument since 2019. She also pointed out that papers of issue so raised in present application has also been filed before the Court below and Court below has also taken note of the same. In support of her contention, she has placed reliance upon the judgment of this Court in the matter of Sanjay @ Mathura Vs. Onkar Arora (Writ A No. 10463 of 2019) decided on 15.7.2019.
5. She also submitted that as per Rule 15(3) of Rules, 1972, it is required on the part of Court to decide the application, if possible within two months from the date of filing.
6. I have considered the rival submissions raised by learned counsel for the parties, perused the records and judgments relied upon.
7. Judgment of Lucknow Bench of this Court in the matter of New Meena Sahkari Awas Samiti Ltd.(Supra) was given in the proceeding of original civil suit and the facts of the case are that defendant has taken two different stands, for which application filed to verify the same through Amin Commissioner, whereas in the present case, facts are entirely different, therefore, this judgment is having no relevance in the present case.
8. Likewise, judgment of Madras High Court in the matter of Shanmugathai(supra) is also arising out of original suit, where the case was that respondent who owned the adjacent land encroached on a potion of the suit property and constructed a super structure, therefore, fact of this case entirely different from the fact of the present case.
9. So far as interpretation made by the both the Courts about Order 27 Rule 9 CPC is having no dispute and undoubtedly, Court can issue Amin Commissioner.
10. Learned counsel for the respondent has also placed reliance upon judgment of this Court in the matter of Sanjay @ Mathura(supra), arising out of P.A. Case No. 26 of 2016 filed under U.P. Act No. 13 of 1972. This Court after considering Section 34 of U.P. Act No. 13 of 1972 and Rule 16 of U.P. Urban Buildings(Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter, referred to as, Rules, 1972') has taken view that appointment of Amin Commissioner cannot be claimed as a matter of right, case set up by the litigant has to be proved by him by adducing evidence thereof and Court cannot come to the aid of litigant for the purpose of collecting evidence. Relevant paragraphs of judgment of Sanjay @ Mathura(supra) are being reproduced hereinbelow:
"13. It is well settled that the powers conferred for issuance of commission are discretionary and 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.
14. 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."
15. 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."
16. 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."
17. The aforementioned legal position has been considered in a recent judgment of this Court in Hari Kishore Vs. Smt. Subhasini Devi and others.
18. In view of the foregoing discussion the legal position, as it emerges, is that in a case where the parties have closed their evidence any application filed for appointment of a commissioner at the stage of arguments would not be permissible as it would amount to permitting the party to fill up lacunae in its evidence. The object of the provision for issuance of commission cannot be to assist a party to collect evidence or to initiate a roving enquiry.
19. In the facts of the present case, the proceedings arising out of the release application filed by the respondent-landlord being at an advanced stage before the Prescribed Authority where evidence of the parties had been closed and the arguments on behalf of the landlord had also been concluded and dates were being fixed for evidence of defendant-tenant, the conclusion drawn by the Prescribed Authority that the application for issuance of commission under Section 34 (1) (c) had been filed at the belated stage only with a view to delay the proceedings cannot be faulted with.
20. Counsel for the petitioner has not been able to point out any material error or illegality in the order impugned which may warrant interference.
21. The petition is devoid of merits and is, accordingly, dismissed."
11. I have also perused the Rule 15(3) of Rules, 1972, which is being quoted herein below;
"15(3)- Every application referred to in sub-rule (1) shall, as far as possible, be decided within two months from the date of its presentation."
12. Now coming to the facts of the case that application has been filed for bonafide need of plaintiff- respondent and further, during pendency of case, new shop has been purchased and for that all documentary evidence has also been filed by the petitioner much earlier before the Court below and the case was being listed for argument since 2019. Reasons for filing application in 2023 at a very belated stage has not been given in the application. Rule 15(3) of Rules, 1972 contemplates to decide the case within two months from the date of filing whereas the present case is pending since 2015, listed for argument since 2019, sale deed was executed in the year 2020, but in the application for appointment of Amin Commissioner, nothing has been disclosed as to why it is filed at a very belated stage coupled with the fact that all relevant documents pertaining to sale deed etc. have been filed before the Court below much earlier.
13. Facts of the present case is squarely covered with the ratio of law laid by this Court in the matter of Sanjay @ Mathura(supra).
14. Therefore, this Court is of the firm view that filing of such application is in teeth of provision of Rule 15(3) of Rules, 1972 as well as ratio of law laid down by this Court in the matter of Sanjay @ Mathura(supra).
15. Under such facts of the case, there is no illegality in the impugned order dated 01.03.2024 passed by Prescribed Authority/ Small Causes Court Judge, Jhansi.
16. Accordingly, petition lacks merit and is dismissed. No order as to costs.
Order Date :- 24.4.2024/Arvind