# Sanjay Alias Mathura /Tenant v. Onkar Arora /Landlord

- **Citation:** (2019) 1 ILRA 955
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-15
- **Case number:** Writ A(Rent Control) No. 10463 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-alias-mathura-tenant-v-onkar-arora-landlord-44509
- **Pages:** 5

## Headnote

Letting, Rent and Eviction) Act, 1972:
Section 34 (1). U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Rules, 1972: Rules 16 and 22.
Issuance of commission cannot be to
assist a party to collect evidence - it is
not a right vested in the litigant.
Application
for
issuance
of
commission
U/S
34
to
conduct
inspection filed at the stage where
parties had closed their evidence. Not
permissible at the stage of arguments
to fill up lacunae in evidence.
The general provisions regarding the
issuance of commission as contained
under
Order
XXVI
C.P.C
would
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. (Para 12)
The object of the provision for issuance of
commission cannot be to assist a party to
collect evidence or to initiate a roving
enquiry. (Para 18)

Precedent followed: -
1.Ranbir Singh Sheoran Vs. VIth Additional
District Judge, Muzaffar Nagar &Ors., 1997 (2)
ARC 347

2.Son Pal Vs. Vth Additional District Judge,
Aligarh &Ors., 1999 (2) ARC 596

3.Avinash Chandra Tewari Vs. ADJ, Court
No.3, Unnao &Ors., 2010 (2) ARC 84

4.Hari Kishore Vs. Smt. Subhasini Devi and
others, 2019 (134) ALR 817 (E-4)

## Text

1 All. Sanjay Alias Mathura Vs. Onkar Arora
955
Sarla Devi (Smt.) Vs. Pushpa Agnihotri
(Smt.) 2008 (2) ARC 725 (paras 6 & 7)
and following the earlier judgments in
Sukhant Gupta Vs. Rent Control and
Eviction Officer, Kanpur and another
1991(2) ARC 445, Naubat Ram Sharma
Vs.
Addl.
District
Judge
IXth,
Moradabad and others, 1987 (2) ARC
121 and Munnilal Vs. Prescribed
Authority, Agra and others, 1992 ACJ
789, it has been held that it is open to the
landlord to file an application under
Section 21(1)(a) of the Act and also file
an application under Section 12(3) of the
Act. The landlord can not be compelled to
wait till such time as the appeal is
decided.

12. For all the reasons aforestated, I
do not find any merit in this writ petition.
Consequently, the writ petition fails and is
hereby dismissed.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.07.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ A(Rent Control) No. 10463 of 2019

Sanjay Alias Mathura ...Petitioner/Tenant.
Versus
Onkar Arora ...Respondent/Landlord.

Counsel for the Petitioner:
Sri Awadhesh Kumar Malviya.

Counsel for the Respondent:
--

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Section 34 (1). U.P. Urban Buildings
(Regulation
of
Letting,
Rent
and
Eviction) Rules, 1972: Rules 16 and 22.
Issuance of commission cannot be to
assist a party to collect evidence - it is
not a right vested in the litigant.
Application
for
issuance
of
commission
U/S
34
to
conduct
inspection filed at the stage where
parties had closed their evidence. Not
permissible at the stage of arguments
to fill up lacunae in evidence.
The general provisions regarding the
issuance of commission as contained
under
Order
XXVI
C.P.C
would
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. (Para 12)
The object of the provision for issuance of
commission cannot be to assist a party to
collect evidence or to initiate a roving
enquiry. (Para 18)

Precedent followed: -
1.Ranbir Singh Sheoran Vs. VIth Additional
District Judge, Muzaffar Nagar &Ors., 1997 (2)
ARC 347

2.Son Pal Vs. Vth Additional District Judge,
Aligarh &Ors., 1999 (2) ARC 596

3.Avinash Chandra Tewari Vs. ADJ, Court
No.3, Unnao &Ors., 2010 (2) ARC 84

4.Hari Kishore Vs. Smt. Subhasini Devi and
others, 2019 (134) ALR 817 (E-4)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

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.
52-Ga) 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
956 INDIAN LAW REPORTS ALLAHABAD SERIES
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 respondent-landlord 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 applicant-landlord were
concluded, and the matter was posted for
arguments of the defendant-tenant. It was
at
this
stage
that
an
application
(Application No. 52-Ga) was filed by the
petitioner-tenant
for
obtaining
a
demarcation
report
by
Amin
Commissioner in respect of certain other
properties which were said to be in
possession of the applicant-landlord. 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 respondent-landlord had been
concluded on 7.3.2019 and thereafter the
case was posted for arguments on behalf
of the defendant-tenant and it was at this
stage
of
the
proceedings
that
the
petitioner-tenant 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
1 All. Sanjay Alias Mathura Vs. Onkar Arora
957
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 sub-section (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
958 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

"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
1 All. Ram Chandra And Another Vs. Bipin Kumar Agnihotri
959
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
others4.

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.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.07.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ A(Rent Control) No. 9936 of 2019

Ram Chandra And Another
 ...Tenants/Petitioners
Versus
Bipin Kumar Agnihotri
 ...Landlord/Respondent

Counsel for the Petitioners:
Sri Ramendra Asthana.

Counsel for the Respondent:
Sri Bhanu Bhushan Jauhari, Sri Pramod
Kumar Srivastava.

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972:
Sections 21(1)(a) & (b), 34(1)(c), Civil
Procedure Code, 1908: Order 41 Rule 27,
Order 26 Rule 9. The power for issue of
Commission is discretionary.

B. Additional evidence -only if the
conditions laid down in Order 41 Rule 27,
CPC are found to exist - cannot be
permitted to be adduced to patch up the
weak points in the case.

Respondent's application for release was
allowed vide judgment dated 27.02.2018.
Affirmed vide order dated 16.04.2019 in
appeal. The tenants-petitioners' application for
issue of commission was rejected during the
pendency of appeal. The present petition,
challenging both the orders, was dismissed
and the High Court

Held:-Petitioners failed to justify the demand
for issue of commission. Filed the application
to delay the disposal of appeal. The power