- (1.) B. K. Rathi, J. Heard Sri S. P. Mehrotra, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for respondent Nos. 1 and 2.
(2.) THE premises in dispute is a residential accommodation, bearing No. 88/488-A, Qasimganj, Faheemadabad, Kanpur. An application was moved for release of the same by the respondent Nos. 1 and 2 under Section 21 (1) (a) of U. P. Act No. XIII of 1972. That application was allowed on 18-11-1998 by order, An-nexure-5 to the petition. Against the order of release, the petitioner preferred an ap peal No. 228 of 1998 under Section 22 of U. P. Act No. XIII of 1972, which is pending before the respondent No. 3. In the appeal, the petitioner moved an application for issue of commission. Annexure-6 to the petition to examine the extent of accom modation in house No. 98/19 Beconganj, Kanpur which is in occupation of the landlords, respondent Nos. 1 and 2. THE application for issue of commission was rejected on 17-3- 2001 by order, Annexure-8 to the petition. Aggrieved by the order, the petitioner has preferred this petition invoking extra-ordinary jurisdiction of this Court under Article 226 of the Con stitution of India. The application for issue of com mission has been rejected mainly on two grounds; firstly, that such an application for issue of commission was rejected by the Court below on 1-8-1998 and, secondly, that the landlord allege that they are living in the above accommodation as licensee. As regard the first ground men tioned by the appellate Court is con cerned, it does not appear correct. The rejection of application for issue of com mission by the trial Court cannot operate res- judicata as appeal or revision is not provided against that order. Regarding the second reason, that the landlords have mentioned that they are living in the ac commodation as licensee, it is also not justified. They have also alleged that the premises is insufficient for the need of the landlords. Therefore, it becomes relevant as to what is the extent of accommodation available to the landlords. They have not alleged that the licensor want to evict them and has cancelled the licence.
(3.) IN view of the above, respondent No. 3 has erred in rejecting the applica tion. The petition is, therefore, allowed. The respondent No. 3 will issue a commis sion as requested in the application, An nexure-6 to the petition, he will obtain the report of commission and thereafter he will proceed with the appeal expeditiously. However, the appellant will riot permit the petitioner to delay the disposal of the ap peal in the garb of the issue of commission. With this observation, the petition is disposed of. Petition allowed. .;