# Anis Ahmad @ Chand Babu S/O Habib Ahmad ( M/S 221/2011 ) v. State Of U.P. Thru Secretary Food & Civil Supplies and others

- **Citation:** (2011) 1 ILRA 411
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-04-04
- **Bench:** Shri Narayan Shukla, S.N.Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anis-ahmad-chand-babu-s-o-habib-ahmad-m-s-221-2011-v-state-of-u-p-thru-41855
- **Pages:** 2

## Headnote

Code of Civil Procedure-Order XXVI
Rule-12-application
to
appoint
commissioner-rejected by Trail Courtupheld by revisional court-ignoring this
fact commissioner report a simple
piece of evidence-aggrieved party has
right to lead evidence in rebuttal or
controvert the report.

Held: Para 14

The report of the Commissioner may be
relied
on
after
examining
the
Commissioner not as report forming
the
basis
of
an
investigation
contemplated by Order 26, Rule 9, but
as
corroborating
the
evidence
of
inspection
conducted
by
the
Commissioner The view by the lower
court therefore that the report can be
treated as evidence in the suit under
Order 26, Rule 10, Sub-rule (2), C.P.C.
is palpably incorrect.
Case law discussed:
[2006 (100) RD 484]; [AIR 1997 Calcutta
59]; AIR 1934 Mad 548; 1954 Ker I.T. 324;
AIR 1933 Cal 475

## Text

1 All] Anis Ahmad @ Chand Babu V. State of U.P. and others
411
get both the case consolidated on his
request.

32. In the light of above said facts,
submission made by learned counsel for
petitioners that Rule 22(e) is applicable to
eviction proceeding and not to release
started on the basis of an application for
release moved by landlord under Section
21(1)(a) of the U.P. Act No. XIII of 1972,
so the provisions of Section 22(e) will not
be available because the term eviction has
been used under Section 20 of the Act, is
wholly
misconceived
argument
and
rejected in view of the facts stated above,
coupled with the fact that once an
application for release moved under
Section 21(1)(a) of the U.P. Act No. XIII
of 1972, then the natural outcome of the
same will be eviction of tenant from the
premises in respect to which release
application has been moved, as such if
two or more release applications have
been moved by landlord for eviction of
tenant
then
the
Prescribed
Authority/Appellate authority has got
power to consolidate the same as per
provisions as provided under Section
34(1)(g) read with Section 22(e) of the
Rules framed under the U.P. Act No. XIII
of 1972.

33. For the foregoing reasons, writ
petition filed by the petitioners lacks merit
and is dismissed.

34. No order as to costs.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2011

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA,J.

Review Petition Defective No. - 95 of 2011

Anis Ahmad @ Chand Babu S/O Habib
Ahmad ( M/S 221/2011 )
 ...Petitioner
Versus
State Of U.P. Thru Secretary Food & Civil
Supplies and others
 ...Respondents

Counsel for the Petitioner:
Sachin Srivastava

Constitution of India-Article 226-Review
Application-on ground of concealment f
fact-petitioner
got
interim
orderallegations
found
established-interim
order
discharged-Petition
itself
dismissed for concealment of material
fact.

(Delivered by Hon'ble S.N.Shukla, J.)

The applicant has filed the present
application to review the order dated
13.1.2011 on the ground that the
petitioner succeeded to get the order on
the basis of concealment as pursuant to
the order impugned dated 16.6.2010
passed by the learned Commissioner,
Devi Patan Mandal, Gonda, the enquiry
had
been
concluded
by
the
Sub
Divisional Magistrate Nanpara on 22nd
September, 2010, whereas the petitioner
instituted the petition on 11.1.2011 and
succeeded to get an interim order by this
Court without disclosing the facts of the
enquiry.

In view of the aforesaid facts, I am
of the view that once the order
impugned
passed
by
the
learned
Commissioner, Devi Patan Mandal,
412 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Gonda has already been executed and
pursuant to that the petitioner was
enjoying the same there is no occasion
to go back for this Court, therefore, I
hereby review the order dated 13.1.2011
passed in Writ Petition No. 221(M/S) of
2011 and dismiss the petition based on
concealment of the facts as well as also
being infructuous.

Review petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2011

BEFORE
THE HON'BLE RAJIV SHARMA,J.

Misc. Single No. - 108 of 2007

Ram Ujagar and another
 ...Petitioner
Versus
Smt.Kailasha and others ...Respondent

Counsel for the Petitioner:
Sri Mohd. Saeed Ii,
Sri Mohammad Saeed-Ii

Counsel for the Respondent:
C.S.C.
Sri Y.M.Singh

Code of Civil Procedure-Order XXVI
Rule-12-application
to
appoint
commissioner-rejected by Trail Courtupheld by revisional court-ignoring this
fact commissioner report a simple
piece of evidence-aggrieved party has
right to lead evidence in rebuttal or
controvert the report.

Held: Para 14

The report of the Commissioner may be
relied
on
after
examining
the
Commissioner not as report forming
the
basis
of
an
investigation
contemplated by Order 26, Rule 9, but
as
corroborating
the
evidence
of
inspection
conducted
by
the
Commissioner The view by the lower
court therefore that the report can be
treated as evidence in the suit under
Order 26, Rule 10, Sub-rule (2), C.P.C.
is palpably incorrect.
Case law discussed:
[2006 (100) RD 484]; [AIR 1997 Calcutta
59]; AIR 1934 Mad 548; 1954 Ker I.T. 324;
AIR 1933 Cal 475

(Delivered by Hon'ble Rajiv Sharma,J.)

1. Heard learned counsel for the
parties.

2. By means of instant writ
petition, the petitioners have assailed
the order dated 20.9.2006 passed by the
District Judge, Unnao in Civil Revision
No. 139 of 2006 and the order dated
30.8.2006 passed by the Civil Judge
(Junior Division), North, Unnao in
Regular Suit No. 225 of 1992, as
contained in Annexure Nos. 1 and 2,
respectively, to the writ petition.

3. Undisputed facts are that husband
of opposite party No.1, namely, Raja Ram
and father of the opposite parties Nos. 2, 3
and 4 had filed a suit for permanent
injunction , which was registered as
Regular
Suit
No.
225
of
1992.
Petitioner/Defendants contested the suit
by filing written statement. During the
pendency of the suit, an application for
issuance of Commission was moved by
the private/opposite parties, in which, a
Survey Commissioner was appointed by
the Trial Court for making inspection.
After
inspection,
the
Survey
Commissioner submitted a report, to
which objections were filed by the
petitioners.
The
Trial
Court,
after
rejecting the objections, confirmed the