R. P. Singh, J. - (1.) -
(2.) THIS petition under Article 226 of the Constitution is directed against the order passed by Additional District Judge, Allahabad dated 14-8-1987. The facts of this case are that respondents 2 to 6, the landlord respondents, filed an application under section 21 (1) (a) of U. P. Act 13 of 1972 for the release of the accommodation in dispute which application was allowed by the Prescribed Authority against which order the petitioner filed an appeal before the learned Additional District Judge. During the pendency of the appeal, the landlords filed an application for admission of the additional evidence to show that the number of family members of respondent-landlords have increased and hence the need of the landlords is more pressing. This application was opposed by the petitioner but the landlords' application for additional evidence was allowed by the learned Additional District Judge and the petitioner was allowed time to file evidence in rebuttal of the same. The petitioner have averred that during the pendency of these proceedings the landlord-respondents, who got possession of the accommodation prosecutely in their possession from late L. Chandra Advocate in the year 1981 and thereafter got it renovated and made additions to the portion in their possession resulting in increase of the accommodation in possession of the landlords and hence moved an application before the learned Additional District Judge that an inspection may be allowed to be made through a Commissioner appointed by the Court who may be directed to make the inspection and submit the report which may be taken into account in rebuttal of the evidence that has been filed as additional evidence before the learned Additional District Judge. This application was opposed by the landlord-respondents and the Additional District Judge rejected the application vide his order dated 14-8-1987 which order is subject to challenge in this writ petition. The contention of the learned counsel for the landlord-respondents is that the application for issuing commission for inspection was rightly rejected by the Additional District Judge as there was no material on the basis of which the inspection of the accommodation in possession of the landlord was prayed for by the petitioners and that the discretion exercised by the learned Additional District Judge has not been arbitrarily exercised and this being an interlocutory order, no interference under Article 226 should be made.
(3.) I have heard the learned counsel for the parties and have taken note of the objection which has been raised by the learned counsel for the respondent. The narration of facts stated above would disclose that at the appellate stage the landlords bad filed an application as adducing additional evidence which application was allowed by the Additional District Judge. Since by the additional evidence the landlords wanted to show that the number of their family members have gone up and hence in rebuttal the petitioner wanted to show by means of an inspection made by a commission appointed by the Court that the accommodation in possession of the landlords has also increased after the renovation, addition and alterations made by the landlords after the same was vacated by its erstwhile tenant Sri L. Chandra. It has been stated in paragraph 7 of the counter affidavit filed on behalf of the landlord that one of the points involved in the case is the extent of accommodation with the landlord and annexure-1 to the supplementary affidavit filed by the petitioner indicates that it was averred by the petitioners that the landlords have been making certain alterations in the accommodation in their possession by which they have been converting the varandah facing the northern-eastern side into rooms hence it appears that in order to show that the accommodation in possession of the landlords have increased after the addition and alterations made by them, the petitioner filed the application for an inspection to be made through an Advocate Commissioner. Section 34 of the U. P. Act 13 of 1972 provides that the District Magistrate or the appellate or revising authority shall for the purpose of holding any inquiry or hearing under the Act have the same powers as are invested in the Civil Court under the CPC in respect of inspecting a building. Section 10 (2) of the Act provides that the appellate court may also take any additional evidence. In the present case the Additional District Judge without addressing himself on the relevant questions, has rejected the application in a summary manner. The relevant portion of the order reads as follows : " I am not inclined to allow the application. The issuance of commission cannot be asked for in the circumstances of the case in rebuttal of the evidence admitted by opposite party. " When it is admitted that the controversy in the case is the extent of accommodation in possession of the landlord and it has been specifically averred by the petitioner that after taking possession of the accommodation from L. Chandra, the landlords have made extensive addition and alterations converting the verandah into rooms, this fact has to be verified by making inspection of the accommodation in dispute in order to judge more properly whether the needs of the landlords could be satisfied with the accommodation in their possession after addition of certain rooms. The order passed by the Additional District Judge shows that he did not approach the case from the correct angle. If the averment of the petitioner was that the landlords have added additional accommodation in their possession by converting the varandah into living rooms, it was necessary to ascertain this fact and to judge its veracity by issuing a commission so that justice could be done to the parties and the case could be decided more adequately and properly keeping in view the extent of accommodation in possession of the landlord. The learned counsel for the petitioner invited my attention to the case Jagat Narain Jain v. IVth Additional District Judge, Kanpur reported in 1982 (1) ARC 295, wherein also an application was moved by the tenant for the appointment of the commissioner during the pendency of the appeal in proceedings under section 21 of U. P. Act 13 of 1972. The commission was prayed for so that report may be obtained regarding the portion in possession of the landlord which application was rejected by the Additional District Judge. Feeling aggrieved the tenant had come up in writ petition to this Court. The Court held that although the writ petition was filed against an interlocutory order and normally the court does not entertain the writ petitions against such orders but the appellate court had rejected the application for issuing the commission without looking into the affidavit filed by the petitioner and without entering into the question as to whether it was open to the tenant to move such an application before the Prescribed Authority or others the same has become necessary in view of the findings recorded by the Prescribed Authority. It was held that the Additional District Judge without addressing himself to the relevant questions, rejected the application and hence the writ petition was allowed and the order rejecting the application for issue of commission was quashed.;