# Km. Soni v. Spl. Judge P.C. Act Ist/Addl. District Judge Lucknow & Ors

- **Citation:** (2023) 11 ILRA 250
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-01
- **Case number:** Matters Under Article 227 No. 21911 of 2020
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-soni-v-spl-judge-p-c-act-ist-addl-district-judge-lucknow-ors-49432
- **Pages:** 4

## Headnote

Order
26-Rule
10-Commission
for
scientific investigation -Application allowed-
once the commission was issued for scientific
investigation-it was open to the petitioner to file
objection
and
even
get
summoned
the
Commissioner for cross examination-but the
petitioner failed to do so-no occasion to file the
second application for rebuttal or to disprove
the report--procedure under Rule 10 of the
Order 26 is to be followed as per sub-rule (2) of
Rule 10A-Rule 10(1) provides that after such
local inspection -and after reducing in writing
the evidence taken by him- shall return such
evidence with his report in writing to the Court -
any of the parties to the suit may examine the
Commissioner
personally
in
open
Court-
application filed is rightly rejected .

Petition dismissed. (E-9)

## Text

250 INDIAN LAW REPORTS ALLAHABAD SERIES
finds that subordinate court has rightly held
that it has no power under Section 34 of the
Act, 1996 to allow amendment to bring out
new facts which were not pleaded before
the Tribunal, and it is only Arbitrator who
is empowered under Section 23(3) to
permit the amendment or supplement the
claim or defence before it, and no such
power is vested with the subordinate court
dealing with the proceeding under Section
34 of the Act, 1996. Hence, this Court is of
the view that the subordinate court has not
committed any illegality in rejecting the
application 63Ka.

51. Thus, for the reasons given above,
the present petition lacks merit and is
hereby dismissed with no order as to costs.
----------
(2023) 11 ILRA 250
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.11.2023
BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Matters Under Article 227 No. 21911 of 2020

Km. Soni ...Petitioner
Versus
Spl. Judge P.C. Act Ist/Addl. District Judge
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Arvind Kumar Jauhari, Amitabh Misra

Counsel for the Respondents:
Mohammad Subhan, Mohd. Wajid Irfan

Order
26-Rule
10-Commission
for
scientific investigation -Application allowed-
once the commission was issued for scientific
investigation-it was open to the petitioner to file
objection
and
even
get
summoned
the
Commissioner for cross examination-but the
petitioner failed to do so-no occasion to file the
second application for rebuttal or to disprove
the report--procedure under Rule 10 of the
Order 26 is to be followed as per sub-rule (2) of
Rule 10A-Rule 10(1) provides that after such
local inspection -and after reducing in writing
the evidence taken by him- shall return such
evidence with his report in writing to the Court -
any of the parties to the suit may examine the
Commissioner
personally
in
open
Court-
application filed is rightly rejected .

Petition dismissed. (E-9)

(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Arvind Kumar Jauhari
learned counsel for the petitioner and Sri
Mohd Wajid Irfan learned counsel for the
respondent nos.3 and 4. None appears on
behalf of the respondent nos.5 and 6
despite sufficient service. The respondent
nos.1 and 2 are the court concerned.

2. Learned counsel for the petitioner
submits that the application filed by the
petitioner under Order 26 Rule 10A C.P.C,
for commission for scientific investigation
has wrongly and illegally been dismissed as
not maintainable, whereas the petitioner
who is plaintiff in the suit has a right to file
an application. The revision filed by the
petitioner has also been dismissed without
considering the grounds raised by the
petitioner. Therefore, the petitioner is
constrained to approach this Court and the
impugned orders are liable to be set aside.

3. Learned counsel for the respondent
nos.3 and 4 submits that the application
moved for scientific investigation i.e.C-37
was allowed with the consent of the
petitioner, on which the report has also
been submitted by the Commissioner, and
no objection to the same has been filed and
after one year, another application was filed
only to delay the proceedings of the regular
suit filed in the year 2009. The application
11 All. Km. Soni Vs. Spl. Judge P.C. Act Ist/Addl. District Judge Lucknow & Ors.
251
filed by the petitioner has rightly been
dismissed by the trial court filed in Regular
Suit no.307 of 2009. The revision has also
been dismissed after considering the
grounds raised by the petitioner by a
reasoned and speaking order. There is no
illegality or infirmity in the impugned
orders. The petition is liable to be
dismissed.

4. Having considered the submissions
of learned counsel for the parties, I have
perused the records.

5. The suit for declaration and
cancellation of sale deed dated 04.05.2006
and permanent injunction has been filed by
the petitioner in the year 2009. The validity
of the Will dated 03.01.2004 has been
questioned by the defendant nos.1 and 2 in
the suit i.e. the respondent nos.3 and 4 in
this
petition.
An
application
for
commission for scientific investigation, C37 was moved by the respondent nos.3 and
4, which was allowed with the consent of
the parties. In pursuance thereof, a report
was submitted by the Commissioner which
is Paper no.A-49. In the said report, the
difference in the signatures of Ashok
Kumar has been found. The petitioner has
not filed any objection against the said
report. He moved a separate application for
rebuttal, which has been dismissed by
means of the order dated 18.03.2016
recording a finding that the application has
been moved only to delay the proceedings
of the case and if the petitioner was
aggrieved with the report of the scientific
investigation i.e. paper no.A-49, he could
have filed objection to the same or revision
against the same and dismissed the
application. Therefore, the contention of
the learned counsel for the petitioner that
the application has been dismissed as not
maintainable is misconceived and not
tenable and is liable to be repelled only and
accordingly repelled. This Court also does
not find any illegality or error in the
findings recorded by the trial court.

6. The revisional court also, after
considering the grounds raised by the
petitioner and affording opportunity of
hearing to the parties, and considering the
material on record by means of the
reasoned and speaking order, dismissed the
revision vide order dated 07.03.2020
passed in civil revision no.128 of 2016. The
relevant findings recorded by the revisional
court is extracted here-in-below:-

"10. म ने जवद्वान अवर न्यायालय द्वारा पाररत
आलोच्य आदेश का पररशीलन कया। आलोच्य आदेश के
पररशीलन एवं जवश्लेर्ण से यह तथ्य स्पष्ट हो रहा ह जक जवद्वान
न्यायालय / अपर जसजवल जज (सी०र्ी०) कक्ष सं0-20, लिनऊ
द्वारा पुनरीक्षणकताष - वाजदनी की ओर से प्रस्तुत प्राथषना पत्र सी -
51 अन्तषगत आदेश 26 जनयम 10 ए जस०प्र०सं० पर जबल्कुल
सही प्रकार से जनष्कर्ष जनकाला ह जक प्राथषना पत्र सी -37 पर पाररत
आदेश के अनुिम में जवजध जवज्ञान प्रयोगशाला, महानगर, लिनऊ
से मृतक अशोक कुमार के हस्ताक्षरो का व ज्ञाजनक अन्वेर्ण पत्रावली
पर कागज संख्या ए -49 प्रेजर्त की गयी परन्तु उक्त आख्या से यजद
पुनरीक्षणकताष वाजदनी व्यजथत थी तो उसको उसके जवरुद्ध अपनी
आपजि जवचारण न्यायालय के समक्ष अथवा पुनरीक्षण न्यायालय मे
पुनरीक्षण प्रस्तुत करना चाजहए था जकन्तु उसकी ओर से ऐसा नहीं
जकया गया और मात्र मूल बाद जोजक वर्ष 2009 लजम्बत चल रहा
ह , को जवलजम्बत करने के आशय से सी-51 प्राथषना पत्र अन्तषगत
आदेश 26 जनयम 10 ए जस०प्र०सं० प्रस्तुत जकया गया प्रतीत हो
रहा ह और उनके द्वारा इस प्राथषना पत्र के जनस्तारण मे अपने न्याजयक
जववेक का प्रयोग करते हुए जवजध सम्मत एवं न्यायोजचत आदेश
पाररत जकया गया ह जजसमें इस पुनरीक्षण के माध्यम से
पुनरीक्षणकताष -वाजदनी कोई ऐसा तथ्य उजागर नहीं कर सकी जजसके
आधार पर आलोच्य आदेश में जकसी प्रकार का हस्तक्षेप जकया जा
सके। जब एक बार प्रस्तुत मामले में व ज्ञाजनक आख्या प्राप्त की जा
चुकी ह तो पुनैः व ज्ञाजनक आख्या आह त जकए जाने से मामले के
जवजध सम्मत ढंग से न्याय-जनणषयन करने मे न्यायालय को असुजवधा
एवं कजठनाई उत्पन्न होने की संिावना से इंकार नहीं जकया जा
सकता ह । जवद्वान अवर न्यायालय / अपर जसजवल जज (सी.जर्.)
252 INDIAN LAW REPORTS ALLAHABAD SERIES
कक्ष सं0-20, लिनऊ द्वारा जो सी-51 प्राथषना पत्र अस्वीकार
जकया गया ह , उसमे कोई त्रुजट एवं ताजत्वक अजनयजमतता पररलजक्षत
नही हो रही हैं।

11. उपयुषक्त वजणषत आलोच्य आदेश के पररशीलन
एवं उपरोक्त जववेचना के आधारे पर मेरा यह मत ह जक जवद्वान अवर
न्यायालय द्वारा पाररत आलोच्य आदेश पत्रावली पर उपलब्ध तथ्यों
के अनुकूल ह और आलोच्य आदेश पाररत करने मे जवद्वान अवर
न्यायालय / द्वारा कोई त्रुजट एवं अजनयजमतता काररत नही की गयी ह ।
आलोच्य आदेश मे इस पुनरीक्षण न्यायालय द्वारा हस्तक्षेप जकया
जाना जवजधक रूप से अपेजक्षत नही ह और यह जसजवल
पुनरीक्षण बलहीन होने के कारण जनरस्त होने योग्य ह ।"

7. The Commission for scientific
investigation can be issued under Rule
10A(1) Order 26 C.P.C. Rule 10A(2)
provides that provisions of Rule 10 of
this Order shall, as far as may be,
apply in relation to a Commissioner
appointed under this rule as they
apply in relation to a Commissioner
appointed under rule 9. Rule 10A is
extracted hereinbelow:-

"10A. Commission for scientific
investigation.?(1) Where any question
arising in a suit involves any scientific
investigation which cannot, in the
opinion of the Court, be conveniently
conducted before the Court, the Court
may, if it thinks it necessary or
expedient in the interests of justice so to
do, issue a commission to such person
as it thinks fit, directing him to inquire
into such question and report thereon to
the Court.

(2) The provisions of rule 10 of
this Order shall, as far as may be, apply
in
relation
to
a
Commissioner
appointed under this rule as they apply
in
relation
to
a
Commissioner
appointed under rule 9."

8. Rule 10 of Order 26 CPC
provides
the
procedure
for
Commissioner,
which
is
extracted
hereinbelow:-

"10.
Procedure
of
Commissioner.?(1)
The
Commissioner,
after such local inspection as he deems
necessary and after reducing to writing the
evidence taken by him, shall return such
evidence, together with his report in writing
signed by him, to the Court.

(2) Report and depositions to be
evidence in suit. Commissioner may be
examined in person.?The report of the
Commissioner and the evidence taken by
him (but not the evidence without the
report) shall be evidence in the suit and
shall form part of the record; but the Court
or, with the permission of the Court, any of
the parties to the suit may examine the
Commissioner personally in open Court
touching any of the matters referred to him
or mentioned in his report, or as to his
report, or as to the manner in which he has
made the investigation.

(3) Where the Court is for any
reason dissatisfied with the proceedings of
the Commissioner, it may direct such
further inquiry to be made as it shall think
fit."

9. In view of the above, the
application for commission for scientific
investigation can be moved under Rule
10A(1) of Order 26 and if it is allowed, the
procedure as provided under Rule 10 of the
Order 26 is to be followed as per sub-rule
(2) of Rule 10A. Rule 10(1) provides that
after such local inspection as he deems
necessary and after reducing to writing the
evidence taken by him, shall return such
evidence, together with his report in writing
signed by him, to the Court which shall
form part of the record and as per Rule
10(2), the Court or with the permission of
the Court, any of the parties to the suit may
11 All. Lakkhi Sonkar Vs. State of U.P. & Ors.
253
examine the Commissioner personally in
open Court touching any of the matters
referred to him or mentioned in his report,
or as to his report, or as to the manner in
which he has made investigation. Sub
Section (3) of Rule 10 provides that where the
Court is for any reason dissatisfied with the
proceedings of the Commissioner, it may direct
such further inquiry to be made as such may as it
shall thinks fit. Thus, once the commission was
issued for scientific investigation on the report of
the respondent nos.3 and 4 and the report was
submitted, it was open to the petitioner to file
objection and even get summoned the
Commissioner for cross examination but the
petitioner failed to do so. Once, the scientific
investigation has already been done, there was no
occasion to file the second application for
rebuttal or to disprove the report.

10. In view of the above, this Court is of
the view that the application filed by the
petitioner has rightly been rejected in accordance
with law by the order dated 18.03.2016 passed in
Regular Suit no.307 of 2009 and the revision
filed by the petitioner has been dismissed by
means of the order dated 07.03.2020 by passing
a reasoned and speaking order on the basis of
record. There is no illegality or error in the
impugned orders which may call for any
interference by this Court. The petition is
misconceived and lacks merit.

11. It is, accordingly, dismissed. No order
as to costs.
----------
(2023) 11 ILRA 253
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.09.2023
BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ C No. 11528 of 2023
Lakkhi Sonkar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rajesh Kumar Singh, Sri Hari Shanker

Counsel for the Respondents:
C.S.C., Sri Dinesh Kumar Singh, Sri Pradeep
Singh

Civil Law - National Food Security Act,
2013 - Sections 3, 8, 15 & 16 - Uttar
Pradesh
Essential
Commodities
(Regulation
of
Sale
and
Distribution
Control) Order, 2016 - Clauses 8, 13 -
Essential Commodities Act, 1955 - Section
3 - Writ Jurisdiction - Article 226 - Locus
Standi - Person Aggrieved - Fair Price Shop
License - Cancellation and Restoration

The petitioner, Lakkhi Sonkar, challenged the
order
dated
14.03.2023
passed
by
the
Additional Commissioner, Vindhyachal Division,
Mirzapur, allowing the appeal of respondent no.
6, Sohrab, and restoring his fair price shop
license, which was cancelled on 05.06.2020 for
irregularities
in
foodgrain
distribution
and
surplus stock found during an inspection on
06.05.2020. The petitioner, husband of a ration
card holder, Geeta, was a complainant in the
proceedings leading to the license cancellation.
He argued that he was an aggrieved person
under the National Food Security Act, 2013, and
the restoration of the license violated his rights,
relying on Jasbhai Motibhai Desai Vs Roshan
Kumar. The respondents contended that the
petitioner, as a complainant, lacked locus standi
to challenge the appellate order, as he was not
an aggrieved person under the National Food
Security Act, 2013, U.P. Food Security Rules,
2015, or the U.P. Essential Commodities
(Regulation of Sale and Distribution Control)
Order, 2016, which limit card holders' rights to
receiving foodgrains or food security allowance.
Held: (1) The writ petition was dismissed as not
maintainable. (2) The petitioner, a complainant
and not a ration card holder, did not qualify as a
"person aggrieved" under Article 226, as he was
not deprived of a legal right or suffered a legal
injury, as clarified in Jasbhai Motibhai Desai Vs