Saturday, 27 July 2019

Whether court should permit appointment of commissioner when evidence of both parties are over?

 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.

ALLAHABAD HIGH COURT

Case :WRIT No. 10463 of 2019

Sanjay Alias Mathura Vs Onkar Arora

Hon'ble Dr. Yogendra Kumar Srivastava,J.
Dated:Order Date :15.7.2019


1. Heard Sri A.K.Malviya, learned counsel for the
petitioner.
2. The present writ petition seeks to challenge the order
dated 01.05.2019 passed by the Judge, Small Causes Court,
Saharanpur in P.A. Case No. 26 of 2016 whereby the
application (Application No. 52Ga)
filed by the petitioner
under Section 34 (1) (c) of U.P. Act No. 13 of 1972 read with
Rule 16 of U.P. Urban Buildings (Regulation of Letting, Rent
and Eviction) Rules, 1972 has been rejected.
3. The records of the case indicate that upon an
application for release having been filed under Section 21 (1)
(a) by the respondentlandlord
setting up his bonafide need,
P.A. Case No. 26 of 2016 (Onkar Arora Vs. Sanjay alias
Mathura) was registered. The parties had put in their
appearance and after exchange of pleadings, the evidence of
both the parties was closed on 10.07.2018, and after
25.07.2018 the case was being listed for arguments. On
07.03.2019 the arguments on behalf of the applicantlandlord
were concluded, and the matter was posted for arguments of
the defendanttenant.
It was at this stage that an application
(Application No. 52Ga)
was filed by the petitionertenant
for
obtaining a demarcation report by Amin Commissioner in
respect of certain other properties which were said to be in
possession of the applicantlandlord.
The aforementioned

application came to be rejected by the Prescribed Authority
vide order dated 01.05.2019 and thereafter the present
petition has been filed.
4. Contention of the counsel for the petitioner is that an
application having been made under Section 34 (1) (c) of the
U.P. Act No. 13 of 1972 for inspection and issuance of a
commission for demarcation of other properties which were
in possession of the respondentlandlord
the court below has
erred in rejecting the said application.
5. It is undisputed that after the parties had put in their
appearance and pleadings had been exchanged the evidence
of the parties had been closed on 10.7.2018 and after
25.7.2018 dates were being fixed for arguments. The
arguments on behalf of the respondentlandlord
had been
concluded on 7.3.2019 and thereafter the case was posted for
arguments on behalf of the defendanttenant
and it was at
this stage of the proceedings that the petitionertenant
had
sought a direction for inspection and issuance of a
commission under Section 34 (1) (c) of the Act of 1972.
6. In order to appreciate the controversy involved in the
present case the provisions of Section 34 (1) of the Act of
1972 may be adverted to.
"Section 34 Power
of various authorities and procedure
to be followed by them:(
1) The District Magistrate, the
Prescribed Authority or any[Appellate or Revising Authority]
shall for the purposes of holding any inquiry or hearing [any
appeal or revision] under this Act have the same powers as are
vested in the Civil Court under the Code of Civil Procedure,
1908 (Act No. V of 1908), when trying a suit, in respect of the
following matters namely,(
a) summoning and enforcing the attendance of any
person and examining him on oath;
(b) receiving evidence on affidavits;
(c) inspecting a building or its locality, or issuing
commission for the examination of witnesses or
documents or local investigation;

(d) requiring the discovery and production of
documents;
(e) awarding, subject to any rules made in that behalf,
costs or special costs to any parts or requiring security
for costs from any party;
(f) recording a lawful agreement, compromise or
satisfaction and making an order in accordance
therewith;
(g) any other matter which may be prescribed."
7. Rule 22 of the U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972 which is with regard
to the powers under the Code of Civil Procedure 1908
conferred on the District Magistrate, the Prescribed Authority
and the Appellate or Revising Authority may also be referred
to. Rule 22 is being extracted below.
"Rule 22 Powers
under the Code of Civil Procedure,
1908 [Section 34(1)(g)]The
District Magistrate, the
Prescribed Authority or the Appellate or revising authority
shall, for the purposes of holding any inquiry or hearing any
appeal or revision under the Act, shall have the same powers
as are vested in the Civil Court under the Code of Civil
Procedure, 1908, when trying a suit, in respect of the
following matters namely,(
a) the power to dismiss an application, appeal or revision for
default and to restore it for sufficient cause:
(b) the power to proceed ex parte, and to set aside, for
sufficient cause, an order passed ex parte:
(c) the power to award costs and special costs to any successful
party against an unsuccessful party:
(d) the power to allow amendment of an application,
memorandum of appeal or revision:
(e) the power to consolidate two or more cases of eviction by
the same landlord against different tenants:
(f) the power referred to in Sections 151 and 152 of the Code
of Civil Procedure, 1908 to make any order for ends of justice
or to prevent the abuse of the process of the authority
concerned."
8. It is seen that Section 34 (1) confers on the District
Magistrate, the Prescribed Authority and also the Appellate or
Revising Authority, for the purposes of holding an inquiry or
hearing in any appeal or revision under the Act of 1972, the

same powers as are vested in the Civil Court under the Code
of Civil Procedure 1908, when trying a suit, in respect of the
specified matters.
9. The object of the aforementioned provision is to lay
down the powers of various authorities in respect of certain
specified matters and to prescribe the procedure for
conducting the proceedings contemplated under the Act. It
lays down a procedure to be followed in the proceedings
before the District Magistrate, the Prescribed Authority and
also the Appellate or Revising Authority while holding an
inquiry or hearing an appeal under the provisions of the Act
of 1972.
10. The provisions under Section 34 thus provide a
complete code in so far as the powers and the procedure to be
followed by the Authorities under the Act are concerned. It
may however be taken note of that Section 34 of the Act of
1972 and the Rule 22 of the Rules, 1972 are procedural in
nature and they cannot be interpreted so as to enlarge the
powers conferred on the authorities under the Act. The
provisions are clearly to be interpreted in furtherance of their
object.
11. Clause (c) of subsection
(1) of Section 34 makes a
provision for inspection of a building or its locality or issuing
commission. The District Magistrate, the Prescribed Authority
or the Appellate or Revising Authority in exercise of powers
under Section 34 (1) (c) can thus issue a commission for the
examination of witnesses or documents or local investigation.
12. The powers for inspecting a building or its locality or
issuing a commission under Section 34 (1) (c) by the District
Magistrate, the Prescribed Authority, or the Appellate or

Revising Authority, are to be in the manner as are vested in
the civil court under the Code of Civil Procedure 1908. The
general provisions regarding the issuance of commission as
contained under Order XXVI C.P.C. would thus be applicable
to any commission issued for the purposes described under
Section 34 (1) (c) by any of the authorities under the Act of
1972.
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.
1 1997 (2) ARC 347
2 1999 (2) ARC 596

"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. 2010 (2) ARC 84. 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 2019 (134) ALR 817.
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 defendanttenant,
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.
Order Date :15.7.2019

(Dr.Y.K.Srivastava,J.)

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