- (1.) HEARD Shri Avdhesh Kumar, learned counsel for the petitioner and the learned standing counsel, who has accepted notice on behalf of the opposite party no.1. No one appears on behalf of the opposite party no.2.
(2.) THE petitioner by means of this writ petition has assailed the orders dated 06.01.2004 and 16.03.2004 passed by the Prescribed Authority/Civil Judge, Malihabad, Lucknow, whereby the prayer for issue of commission has been refused.
(3.) THE brief facts are that the opposite party no.2 filed an application for release under Section 21(1)(a) of U.P. Act No.13 of 1972 against the petitioner on the ground of bonafide need. The said application for release was filed in the year 1998 and the petitioner filed his written statement in the year 2000 i.e. after a gap of two years. Thereafter, the case proceeded and the parties adduced the evidence. The petitioner in the year 2004 moved an application for issue of commission for local inspection with the allegation that the opposite party no.2 in his application for release has stated that he had only two rooms and two kotharis in his occupation while as a matter of fact he has much more accommodation in his occupation. In these circumstances, in order to bring on record the correct position of the spot and the accommodation in possession of the opposite party no.2, a commission be issued for local inspection, who may inspect the house in dispute and give his report with regard to the accommodation in occupation of the opposite party no.2. This application was opposed by the opposite party no.2 on the ground that the petitioner has been delaying the proceedings of this case on one ground or the other. Instead of filing his evidence, the petitioner has been moving applications one after the other. The learned Prescribed Authority after hearing the counsel for the parties, rejected the application of issue of commission on the ground that there was no need for local inspection of the house in dispute and issuance of commission would only delay the proceedings of the case. After the rejection of his application for issue of commission, on 06.01.2004, the petitioner moved another application for issue of commission on 16.03.2004 on the same ground. This application was again rejected by the learned Prescribed Authority observing that similar application moved by the petitioner has already been rejected earlier and it could be ascertained from the evidence of the parties as to what accommodation is in occupation of the parties.;