High Court
Case Details
Court No. - 10 Case :- MATTERS UNDER ARTICLE 227 No. - 2314 of 2023 Petitioner :- Triyugi Nath Respondent :- Rudra Narain Bhatt And 2 Others Counsel for Petitioner :- Avdhesh Chandra Nigam Hon'ble Dinesh Pathak,J. Supplementary affidavit filed by the petitioner is taken on record.
Facts
Instant petition has been filed on behalf of the tenant (defendant- petitioner) assailing the order dated 04.11.2022 passed by the Additional District & Sessions Judge, Court No. 9, Kanpur Nagar in Rent Revision No. 171 of 2021 affirming the order dated 20.10.2021 passed by the Civil Judge (Junior Division), Kanpur Nagar rejecting the misc. application (paper no. 43) moved on behalf of the tenant-petitioner under Section 34(1)(C) of THE UTTAR PRADESH URBAN BUILDINGS (REGULATION OF LETTING, RENT AND EVICTION) ACT, 1972 (hereinafter referred as 'Act 1972'). Facts culled out from the averments made in the writ petition along with its annexures, are that the landlords/respondents have moved a release application under Section 21(1)(a) of Act, 1972 for release of the shop in question, which is situated on the ground floor of House No. 75/21-B, Moorha Toli, Kanpur Nagar. Detail dimension of shop in question is averred in paragraph no. 6 of the application. In paragraph no. 7 of the said application the landlord has given details of three shops, which are allegedly in the possession of the tenant/petitioner. In the written statement defendant/petitioner has denied his possession over the accommodation which are mentioned in paragraph 7 of the release application. However, during pendency of the case, while evidence of the defendant/petitioner was going on, he has moved an application (Paper No. 43-C) under Section 34(1)(C) of Act 1972 for issuing a Commission to inspect the following premises:- 1. House No. 75/21B, Morha Toli, Halsi Road, Kanpur. 2. House No. 75/21A, Morha Toli, Halsi Road, Kanpur. 3. House No. 50/265, Morha Toli, Halsi Road, Kanpur; and 4. House No. 50/67, Moorha Toli, Halsi Road, Kanpur. Against the said application the landlords/ respondents have filed an objection (Paper No. 45) with an averment that previously one application (Paper No. 37), on the same set of facts, had already been rejected by the court concerned. It is further averred that the application for the purposes of issuing the Commission has been moved intending to protract the litigation, whereas evidence of the opposite party is going on. Learned trial court vide order dated 20.10.2021 has rejected the misc. application (Paper No. 43-C) on the ground that the Commission cannot be issued to determine the possession of the parties and to collect the evidence. The revisional court, on revision being filed on behalf of the tenant/ petitioner, has dismissed the revision and affirmed the order passed by the trial court. Learned counsel for the petitioner submits that the courts below have illegally rejected the application for issuing the Commission to verify possession of parties over the accommodation and its status as mentioned in application (Paper No. 43-C), which is the paramount consideration involved in the matter and there is possibility of rejection of the release application on this ground alone. Apart from that landlords/respondents have sufficient accommodation to fulfill their bonafide need. It is further submitted that issuing the Commission will not harm the interest of any party and in the interest of justice it should be issued to determine the status of the properties and possession of the parties over there, which are mentioned in the application. Having considered the submissions advanced by the learned counsel for the petitioner/tenant and perusal of record on board, it reveals that the release application has been moved showing the bonafide need of the shop in question for the sons of the landlords (respondent nos. 1 and 2). Details of the property, as mentioned by the landlord in paragraph 7 of the release application, has already been denied by the tenant/ petitioner in his written statement. However, during pendency of the matter, moving an application for issuing a Commission to clarify the possession of the parties over the properties and there present status, which are mentioned in application(Paper No. 43-C), in my considered opinion, is not justifiable in the eye of law. Learned courts below have rightly made an observation that in summary proceeding averment as made in paragraph no. 7 of the release application can be denied by filing an affidavit and adducing documentary evidence in support of the averment of fact as made in the affidavit. Report of any Commission is not admissible in evidence for the purposes of deciding the possession and title of any party over the properties as claimed for by the petitioner. Report of any Commission is simply an assertion of fact with respect to the situation on spot and same cannot be treated to be an admissible evidence. It is worth considerable that previous application moved by the tenant/ petitioner on the same set of facts, as mentioned in the subsequent application (Paper No. 43), has already been rejected by the trial court in absence of the petitioner. The record reveals that, at present, evidence on behalf of the tenant/ petitioner is going on and he has full opportunity to file an affidavit of witnesses to prove the possession of the parties over the property in question and its status, which have been sought to be inspected by issuing a Commission. The release application is pending since 2018 and at this stage allowing the application for issuing a Commission would not be appropriate, whereas parties have full opportunity to put their case through their respective affidavits/evidence.
Legal Reasoning
I do not find any perversity, illegality or ambiguity in the judgments passed by the courts below which may warrant the indulgence of this court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. There is nothing on record to demonstrate as to how the tenant/ petitioner is prejudiced, or if there is any likelihood of causing miscarriage of justice to the petitioner, due to the refusal of issuing a Commission by orders under challenge. In this conspectus, as above, instant petition, being devoid of merit and misconceived, is hereby dismissed with no order as to cost. Order Date :- 24.4.2023 Pkb/ Digitally signed by :- PRAMOD KUMAR BAJPAI High Court of Judicature at Allahabad