BHAGWANT SINGH Vs. GURCHARAN KAUR

JUDGEMENT

(1.) This petition under Article 227 of the Constitution of India impugns the order of the first appellate court dated 12.7.2010 by which the first appellate court has allowed the application filed by the respondents/landlord (petitioner in the eviction petition) for appointment of a local commissioner/expert/architect for reporting the position of construction in the tenanted premises. The subject eviction petition is a petition under Section 14(1)(j) of the Delhi Rent Control Act, 1958 (in short 'the Act') and which provides that a tenant who makes unauthorized additions and alternations to a tenanted premises will be liable to be evicted when the unauthorized additions and alternations cause substantial damage to the premises. The provision of Section 14(1)(j) of the Act has to be read with the provision of Section 14(10) of the Act which states that eviction is not ordered if a tenant repairs the damage caused to the tenanted premises to the satisfaction of the Controller or pays to the landlord such amount of compensation as the Controller may direct.

(2.) Before I advert to the facts of the present case, it is necessary to state that the powers under Article 227 of the Constitution of India are discretionary powers. These discretionary powers are not exercised even if the impugned order is in some manner not strictly legal, once, there is no injustice which is being caused by the impugned order. Putting it differently, discretionary powers under Article 227 of the Constitution of India are not exercised if by exercising these powers injustice will be caused.

(3.) The main thrust on behalf of the petitioner/tenant for challenging the impugned order is that a local commissioner/expert/architect could not be appointed at the stage of final arguments because it would allow a person/respondents/landlord to fill up the lacunae in his case. It is also argued that local commissioners are not appointed by courts to collect evidence for the parties. Reliance is placed for the argument that local commissioners are not appointed to collect evidence for the parties on the judgments in the cases of Ghani Mohammad Vs. Jamaluddin and Others, 1986 29 DLT 497; Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and Ors., 2001 3 CivCC 303 (Bombay) and Ram Kishan Taparia Vs. Shyamlal & Ors., 2000 2 CivCC 199 (Rajasthan). In support of the arguments that an application for appointment of a local commissioner cannot be allowed because of delay in filing the same at the stage of final arguments and for filling up lacunae in evidence, reliance is placed upon the judgments in the cases of B.S.Nazir Hassan Khan Vs. Aswathanarayana Rao and others, 2004 AIR(Kar) 92and Tulamaya Chettri and another Vs. Yonarayan Pradhan and others, 2004 AIR(Sik) 39 .