KALI SHANKER Vs. WADHO RAM

JUDGEMENT

(1.) Heard learned Counsel appearing on behalf of the petitioner.

(2.) The petitioner-tenant aggrieved by the order passed by the appellate Court dated 25th November, 2004, copy whereof is annexed as Annexure-'1' to the writ petition, approached this Court by means of present writ petition under Article 226 of the Constitution of India, whereby an application filed by the petitioner-tenant 70 C purported to be under Section 34 (1) (c) of the U.P. Act No. XIII of 1972 for issuing Commission for the report about the accommodation available to the parties in premises in dispute and also other two premises. Before passing of this order, it appears that the petitioner earlier approached this Court by means of writ petition No. 15442 of 2004, which has been decided by this Court vide its judgment and order dated 16th April, 2004, whereby this Court allowed the application for amendment filed by the petitioner-tenant and issued a direction, which runs as under :

(3.) The Appellate Court by the order impugned in the present writ petition found that the application for issuing Commission for spot inspection was filed when the case was fixed for filing the written arguments by the appellate Court. The appellate Court also found that in view of the direction issued by this Court, the parties are not entitled to adduce any additional evidence as is sought to be done by the application 70 C, therefore the appellate Court rejected the aforesaid application. Learned Counsel appearing on behalf of the petitioner-tenant relied upon a decision of this Court reported in 2003 (1) A.R.C., 418 Dwarika Nath Soni v. Bhagwan Das Gupta, wherein this Court has held that in view of the earlier decision of this Court reported in 1998 (1) A.R.C. 589, Dr. K.C. Tandon v. IX A.D.J., the discretion should have been exercised for issuing a Commission on this vital aspect involved in the case in order to ascertain the exact position on the spot instead trying to infer it by means of complicated legal logic applied to the evidence on record and therefore, the order denying the local inspection was set aside by this Court. Learned Counsel for the petitioner-tenant firstly argued that there was no direction by this Court as in the present case and secondly the earlier application filed by the petitioner for the similar prayer was rejected. In this view of the matter, I do not see that there is any error committed by the appellate Court, so as to warrant any interference by this Court in exercise of power under Article 226 of the Constitution of India.