HARDEEP SINGH Vs. KALAWATI DEVI

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and perused the record. This petition is directed against an order dated 8.4.2009 passed by the Xth Addl. District Judge, Kanpur Nagar by which an application for the appointment of an Advocate Commissioner has been rejected. The respondent landlord preferred an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 before the prescribed authority for seeking release of the disputed accommodation on the ground of his bona fide need in 1997 and which was registered as P.A. Case No. 85 of 1997 by the prescribed authority. After exchange of pleadings, the application was allowed vide order dated 1.12.2003 against which the petitioner preferred an appeal no. 2 of 2004 which is pending. He made an application dated 20.8.2007 for appointment of an Advocate Commissioner on the ground that certain constructions have been made and other premises were also available with the landlord which may be inspected and report submitted by the Commissioner. After considering the objections, the application has been rejected by the impugned order. It is urged that the appellate court was not justified in rejecting it as the report would have gone a long way to enable it to reach to a just decision and, therefore, the discretion has been illegal exercised. He has relied upon a Single Judge decision of this Court rendered in the case of Dwarika Nath Soni Vs. Bhagwan Das Gupta [2003 (1) ARC 418] and also a unreported decision of this Court rendered in the case of Harish Chandra Vs. Sunil Bajpai and another (Civil Misc. Writ Petition No. 15984 of 2003) decided on 27.3.2008. It has to be kept in mind that the release application which was filed in 1997 was allowed after six years in 2003 and the appeal has remained pending for about four years when the present application for appointment of Commissioner has been made. It is apparent, from the record that the petitioner had earlier also moved an application for appointment of a Commissioner on 19.1.2005 and the same was rejected on 9.5.2005. In the new application filed in 2007, there is only a vague assertion that some constructions have been made. The application is silent whether the constructions were made or started before or after May, 2005. Further, the application is also vague with regard to the other accommodation alleged to be in possession of the landlord and there is no assertion when those accommodation came in his possession nor any evidence worth the name except the affidavit was brought on record to show that in fact prima facie the landlord was in possession of those accommodation. It is also apparent, from the record that the case has been fixed for argument since 2005 and about four years have already expired but the arguments have yet not been completed. The appellate court has given liberty to the petitioner to prove the assertions made by him in his application by his own evidence. No doubt there cannot be any quarrel with the ratio laid down in the aforesaid cases of Dwarika Nath Soni and Harish Chandra, however, the facts of the present case are entirely different which have been noted above and thus it would not apply in the present case. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.