SHAMBHU DAYAL Vs. SMT. PUSHPA KANTA

JUDGEMENT

(1.) THIS revision petition is directed against the order of the Rent Controller, dated January, 31, 1984, whereby the objections filed on behalf of the tenant against the report of the local commissioner were rejected.

(2.) DURING the pendency of the ejectment proceedings before the Rent Controller, the landlady moved the application purporting to be under Order XXVI Rule 9, Code of Civil Procedure, (hereinafter called the Code), for appointment of a local commissioner. The learned Rent Controller without issuing any notice to the tenant -Petitioner, passed the orders on May 30, 1981, appointing Shri K.B. Deswal, Sub -Divisional Officer, P.W.D. (BandR), Hansi, as the local commissioner. He was directed to visit the disputed house (kotha) and also to report about the condition of the kothari. It was also directed that Respondent will not obstruct the local commissioner in carrying out his duties. Accordingly, the said local commissioner made his report dated January 9, 1982, to which objections were raised on behalf of the tenant -Petitioner. It was alleged by him that the said report was not binding upon him as it was against law and facts as no notice whatsoever was given prior to the inspection of the spot by the local commissioner to him, nor any notice was issued by the Rent Controller to him before appointing the local commissioner. Allegations were also made that the local commissioner so appointed was a friend of the husband of the landlady and that he was in collusion with her. Reply thereto was filed on behalf of the landlady controverting the allegations made in the objection petition. However, the issues were framed and the parties were allowed to lead evidence. Ultimately, the Rent Controller found that there was no force in the objections raised. According to him, the local commissioner was appointed in the capacity of the Sub -Divisional Officer, P.W.D. (B.ML), and accordingly, he had submitted his report, Exhibit P.W. 7/A and, thus, it could be termed that the report had been submitted by a public servant in order to implement the order of the Court in his official capacity. Thus, the said report was per se admissible in evidence. As stated earlier, dissatisfied with the same, the tenant has filed this revision petition in this Court.

(3.) I have heard the learned Counsel for the parties and am of the considered opinion that since no notice was issued under Order XXVI Rule 18 of the Code to the parties either by the Rent Controller while appointing the local commissioner, or by the local commissioner himself intimating his date and time of the site inspection, his report was not admissible in evidence under order XXVI Rule 10 of the Code. It may be worth noticing here that though in a given case local commissioner could be appointed under Order XXVI Rule 9 of the Code without issuing any notice to the party opposite, yet no such case was made out in the case in hand. Nothing was alleged in the application for the appointment of the local commissioner showing urgency for his appointment so as to do away with the issuing of any notice to the tenant. In any case, even if such an order was passed, direction should have been given as contemplated under Order XXVI Rule 18 of the Code. Admittedly, no such direction was given either by the Court while appointing the local commissioner, or by the local commissioner himself before inspecting the premises.