Dinesh Kumar vs Deepak Kumar Arora & Anr.

Hon'Ble Dr. Yogendra Kumar Srivastava, J.

Heard Sri Prasoon Tomar, learned counsel for the petitioner and Sri Pavan Kumar, learned counsel appearing for the respondents.

The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India assailing the order dated 12.05.2026 passed by the Additional District Judge, Court No. 1, Bijnor, in Miscellaneous Appeal (Rent Control Appeal) No. 04 of 2023, whereby the petitioner's application, Paper No. Ga-64, seeking appointment of a Commissioner for local investigation of the commercial accommodation situate in Property No. 151, Main Market, Chowk Bazar, Najibabad, District Bijnor, has been rejected.

The respondent-landlords instituted proceedings under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, registered as P.A. Case No. 03 of 2017, before the Prescribed Authority, Najibabad, District Bijnor, seeking release of the disputed shop on the ground of bona fide requirement. The requirement pleaded was for establishing a cosmetic business for Deepak Kumar, son of the landlord. The petitioner contested the release application by filing a written statement, disputing the bona fide requirement set up by the landlords. The Prescribed Authority, however, allowed the release application by order dated 20.12.2022.

Aggrieved by the order of release, the petitioner preferred Miscellaneous Appeal (Rent Control Appeal) No. 04 of 2023 before the District Judge, Bijnor. During the pendency of the appeal, the petitioner moved an application, Paper No. Ga-36, under Order XLI Rule 27 read with Sections 151 and 141 of the Code of Civil Procedure, 1908, seeking leave to adduce additional documentary evidence. The case set up in support of the application was that the landlords owned several commercial properties and that certain municipal tax assessment records pertaining to Property No. 151, obtained from the old records of the Nagar Palika, disclosed the existence of vacant shops in the said property.

The documents sought to be brought on record were filed as Paper No. Ga-38 and were accepted by the Appellate Authority by order dated 03.04.2024. Thereafter, the petitioner moved an application, Paper No. Ga-43, supported by an affidavit, Paper No. Ga-44, in relation to the additional documentary evidence. The respondents filed their objections thereto through Papers No. Ga-47 and Ga-48.

Subsequently, the petitioner moved another application, Paper No. Ga-64, seeking appointment of a Commissioner for local investigation of Property No.151, situate in the main market area of Chowk Bazar, Najibabad. The petitioner asserted that the municipal tax assessment records already brought on the appellate record indicated the existence of vacant commercial shops in the said property, whereas the landlords, through their affidavits, had disputed both the existence and the vacant status of such accommodation. It was, therefore, contended that a local investigation was necessary to ascertain the actual physical position of the property and determine whether the commercial accommodation reflected in the municipal records existed and was lying vacant.

The application was opposed by the respondents through objections filed as Paper No. Ga-93. Upon consideration of the rival submissions, the Appellate Authority rejected the application by order dated 12.05.2026. The principal consideration informing the rejection was that the municipal tax assessment records pertaining to Property No. 151 had already been brought on record by the petitioner and that no sufficient justification had been made out for directing a local investigation of the same property. Aggrieved by the aforesaid order, the petitioner has approached this Court.

Learned counsel for the petitioner submits that the Appellate Authority has committed a manifest error in rejecting the application seeking appointment of a Commissioner without properly appreciating the relevance and necessity of the proposed local investigation. It is contended that the release application was instituted by the landlords on the ground of bona fide requirement of the disputed shop for establishing a cosmetic business for their son. The availability of other commercial accommodation belonging to the landlords is, therefore, a material circumstance bearing directly upon the question of bona fide requirement.

It is further submitted that the municipal tax assessment records pertaining to Property No.151, which have already been accepted as additional evidence by the Appellate Authority, disclose the existence of vacant commercial shops in the said property. The respondents, however, have disputed the existence as well as the availability of such shops through their affidavits. In these circumstances, according to learned counsel, local investigation was necessary to ascertain the actual physical position of the property and verify whether the commercial shops reflected in the municipal records were in existence and lying vacant.

Learned counsel submits that the petitioner is not seeking appointment of a Commissioner for collecting evidence or filling any lacuna in his case. The proposed local investigation is intended to ascertain the physical features and factual position of the property in the context of the municipal records already brought on record, particularly when the respondents have disputed the existence and vacant status of the commercial accommodation reflected therein. It is urged that the Commissioner's report would assist the Appellate Authority in properly appreciating the controversy and arriving at a just conclusion while deciding the appeal.

It is further contended that the Appellate Authority has rejected the application merely on the ground that the municipal assessment records are already available on record, without appreciating that the entries contained in documentary records and the actual physical condition of the property are distinct matters. According to learned counsel, the municipal assessment records, by themselves, cannot conclusively establish whether the shops reflected therein physically exist or whether they are lying vacant and available for commercial use. A local investigation was, therefore, necessary to ascertain the factual position which could not be established merely from the documentary entries.

Learned counsel also submits that the petitioner is about 64 years of age and has been carrying on a stationery business from the disputed shop, which constitutes the sole source of livelihood for his family. It is, therefore, contended that the petitioner ought to be afforded an effective opportunity to establish his defence and that refusal to appoint a Commissioner would cause prejudice to his case. On these submissions, learned counsel prays that the impugned order be set aside and the Appellate Authority be directed to allow the application, Paper No. Ga-64, seeking appointment of a Commissioner.

Learned counsel appearing for the respondents supports the impugned order and submits that the Appellate Authority has committed no illegality or jurisdictional error in rejecting the petitioner's application. It is contended that the petitioner has already brought the municipal tax assessment records pertaining to Property No. 151 on the appellate record as additional evidence, and the same are available for consideration by the Appellate Authority while deciding the appeal.

Learned counsel further submits that the application seeking appointment of a Commissioner is essentially an attempt to collect further evidence in support of the petitioner's defence under the guise of local investigation. It is urged that a commission cannot be issued to enable a party to establish facts which it is otherwise required to prove by adducing admissible oral and documentary evidence. The questions relating to the existence, ownership, occupation and availability of alternative accommodation are matters to be determined by the Appellate Authority upon appreciation of the evidence brought on record by the parties.

It is further submitted that a local investigation undertaken at this stage would merely disclose the physical condition of the property as obtaining on the date of inspection and would not establish whether the alleged shops were vacant or available to the landlords at the relevant point of time. According to learned counsel, the proposed exercise would, therefore, neither resolve the controversy arising in the appeal nor materially assist the Appellate Authority in determining the bona fide requirement pleaded by the landlords. The application has, accordingly, rightly been rejected.

Learned counsel also submits that the petitioner cannot claim appointment of a Commissioner as a matter of right merely because the respondents have disputed the inference sought to be drawn from the municipal assessment records. The petitioner has already been permitted to bring the relevant documents on record, and the respondents have also been afforded an opportunity to file their objections thereto. The Appellate Authority is competent to examine the evidentiary value of the documents and the rival affidavits while adjudicating the appeal. It is, therefore, submitted that no interference with the impugned order is warranted and the petition deserves to be dismissed.

The Court has considered the rival submissions advanced on behalf of the parties and perused the pleadings, the material available on record and the impugned order passed by the Appellate Authority.

The principal question arising for consideration in the present petition is whether, in the facts and circumstances of the case, the Appellate Authority was justified in declining to appoint a Commissioner for local investigation of Property No.151, or whether such refusal suffers from any jurisdictional error or material illegality warranting interference in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. In particular, the issue requires examination in the context of the petitioner's contention that the municipal tax assessment records already brought on the appellate record do not, by themselves, disclose the actual physical existence and vacant status of the commercial accommodation reflected therein.

Before proceeding to examine the rival submissions, it would be appropriate to notice the statutory provision conferring upon the authorities constituted under U.P. Act No. XIII of 1972 the power to inspect a building or its locality and to issue a commission for local investigation. Section 34(1)(c) of the Act provides as follows:

The aforesaid provision expressly confers upon the Prescribed Authority, the Appellate or Revisional Authorities powers analogous to those vested in a Civil Court under the Code of Civil Procedure, 1908, in the matters specified therein. The power to issue a commission for local investigation is thus referable to Section 34(1)(c) of the Act and is required to be exercised consistently with the principles governing the exercise of such power by a Civil Court under Section 75 read with Order XXVI Rule 9 CPC. Section 75 CPC, insofar as relevant, provides:

The power to issue a commission for local investigation is essentially an enabling provision intended to facilitate the process of adjudication. The expression "requisite or proper" employed in Order XXVI Rule 9 CPC is of particular significance. It indicates that the power is discretionary and is not to be exercised routinely or merely because a party seeks local investigation in relation to a disputed fact. The exercise of such power must be preceded by a judicial assessment of the nature of the controversy and the material available on record, so as to determine whether local investigation is genuinely necessary or would otherwise be appropriate for elucidating a matter in dispute. The relevant consideration is whether the proposed investigation would provide assistance in resolving the controversy which cannot be satisfactorily elucidated through the material otherwise available to the adjudicating authority.

The object of appointing a Commissioner for local investigation is to assist the adjudicating authority in ascertaining and understanding the physical features, situation or other relevant circumstances of the subject matter of the dispute. Such investigation is intended to facilitate proper appreciation of the controversy by providing objective assistance in matters where an inspection of the property or its locality would aid the adjudicatory process. The power, however, cannot be exercised for the purpose of enabling a party to discharge the burden of proof resting upon it or to procure evidence which it is otherwise required to establish through the ordinary process of proof.

It is, therefore, necessary to maintain a clear distinction between elucidation of a matter in dispute and collection of evidence in support of a party's case. While the former constitutes a legitimate object of local investigation, the latter falls outside the scope of Order XXVI Rule 9 CPC. A Commissioner cannot be appointed merely to ascertain the correctness of the factual assertions of one party or to undertake an independent enquiry for discovering material which may subsequently be relied upon in support of its case. The provision is not intended to afford a litigant an additional opportunity to improve the evidentiary foundation of its pleadings or overcome deficiencies in the evidence adduced by it.

This distinction assumes particular significance in cases where the controversy relates to the existence, nature, occupation or availability of alternative accommodation. The physical existence of a property, its actual occupation, its vacant status and its suitability or availability for a particular requirement are distinct factual considerations. A local investigation may, in an appropriate case, assist the adjudicating authority in ascertaining the physical features or existing condition of the property. The legal and factual significance of such features, including the questions of ownership, availability and suitability of the accommodation for the requirement in question, must, however, be determined by the adjudicating authority upon consideration of the entire evidence available on record. The report of a Commissioner cannot, by itself, substitute the process of judicial determination of these issues.

An equally relevant consideration is the temporal significance of the proposed investigation. A local investigation ordinarily discloses the physical condition and circumstances obtaining at the time of inspection. Where the controversy concerns the availability or vacant status of an accommodation at an earlier point of time, a subsequent inspection cannot, by itself, conclusively establish its historical status. The proposed investigation must, therefore, have a direct and meaningful bearing upon the controversy requiring adjudication. An exercise which merely records the physical position obtaining on the date of inspection, without being capable of elucidating the relevant factual issue, would not satisfy the requirement contemplated under Order XXVI Rule 9 CPC.

The aforesaid principles have recently been considered and explained by this Court in Romil Jain v. Ashok Kumar Jain and Another^{11.2026:AHC:138516}. In that case, the petitioner-tenant had sought appointment of a Commissioner for local investigation of the disputed premises on the ground that the building constituted a new construction and was, therefore, exempt from the operation of U.P. Act No. XIII of 1972. The applications seeking appointment of a Commissioner had been rejected by the Prescribed Authority as well as the Appellate Authority, principally on the consideration that adequate documentary evidence concerning the age and nature of the construction was already available on record.

While examining the scope of Section 34(1)(c) of U.P. Act No. XIII of 1972 read with Section 75 and Order XXVI Rule 9 CPC, this Court held that the expression "may issue a commission" employed in the statutory provisions is enabling and discretionary in nature and does not confer upon a litigant any vested or enforceable right to insist upon appointment of a Commissioner. Whether local investigation is requisite or proper is a matter of judicial discretion, to be determined with reference to the nature of the controversy, the material already available on record and the necessity or propriety of such investigation for effective adjudication.

This Court further observed that the power to issue a commission is intended to assist the adjudicating authority in elucidating a matter in controversy and cannot be invoked to enable a litigant to collect evidence, fill lacunae in its case or embark upon a fishing or roving enquiry. The mere existence of a disputed factual issue does not, by itself, furnish sufficient justification for appointment of a Commissioner. Even where the factual issue sought to be established is material to the adjudication, the proposed local investigation must independently satisfy the statutory requirement of being requisite or proper for elucidating the matter in dispute.

The decision further clarifies that where the oral and documentary evidence available on record is adequate for adjudication of the controversy, refusal to appoint a Commissioner would constitute a legitimate exercise of judicial discretion. Local investigation cannot be converted into a means of strengthening the factual foundation of a party's case or overcoming an evidentiary deficiency. The controlling consideration is whether the proposed investigation would genuinely assist the adjudicating authority in elucidating a matter in dispute, having regard to the nature of the controversy and the evidence already available.

The principles enunciated in Romil Jain are relevant to the controversy involved in the present case. They require the adjudicating authority to examine the precise object for which local investigation is sought and whether the proposed exercise would genuinely elucidate a matter in dispute or would merely provide an additional means of collecting evidence in support of the case set up by the applicant. The mere fact that a party disputes the factual inference sought to be drawn from documentary evidence already available on record does not, by itself, warrant appointment of a Commissioner. The necessity or propriety of local investigation must be independently assessed in the context of the particular controversy and the nature of the assistance which the proposed investigation is likely to provide.

The legal position emerging from the discussion may be summarised thus: The power to appoint a Commissioner for local investigation is discretionary and is to be exercised judicially, having regard to the nature of the controversy and the requirements of effective adjudication. The mere existence of a disputed question of fact, or a disagreement between the parties regarding the inference to be drawn from the evidence already on record, does not, by itself, justify appointment of a Commissioner. The proposed investigation must be shown to be requisite or proper for elucidating a matter in dispute. Its legitimate object is to assist the adjudicating authority in understanding or ascertaining relevant physical features or circumstances which would aid the adjudication; it cannot be employed as a means of collecting evidence, filling an evidentiary lacuna, testing the correctness of a party's assertion or improving the evidentiary foundation of a case. At the same time, the availability of oral or documentary evidence on record does not, by itself, preclude local investigation where an independent examination of the physical features or circumstances would genuinely assist in elucidating the controversy. The decisive consideration, therefore, is whether, in the facts and circumstances of the particular case, the proposed investigation would serve a legitimate adjudicatory purpose and materially assist in resolving the matter in dispute.

Having examined the statutory framework and the principles governing the exercise of power to appoint a Commissioner for local investigation, this Court now proceeds to consider whether, in the facts and circumstances of the present case, the Appellate Authority committed any jurisdictional error or material illegality in rejecting the petitioner's application, Paper No. Ga-64.

In the present case, the petitioner seeks appointment of a Commissioner to inspect Property No. 151, situated in the main market area of Chowk Bazar, Najibabad, to ascertain whether any vacant commercial shops are available therein. The application is founded upon the municipal tax assessment documents which were brought on record by the petitioner during the pendency of the appeal, pursuant to the order dated 03.04.2024 passed on Paper No.Ga-36. The evidentiary value of those documents and the inferences, if any, that may be drawn from them are matters falling within the domain of the Appellate Authority while deciding the appeal.

It is relevant to note that the petitioner has already succeeded in bringing the aforesaid municipal records on the appellate record by invoking Order XLI Rule 27 CPC. The material upon which he seeks to found his plea regarding the availability of alternative accommodation is, therefore, available for consideration by the Appellate Authority. The fact that the respondents have disputed the existence or vacant status of the shops referred to in those records does not, by itself, render appointment of a Commissioner necessary or proper. Such a dispute has to be adjudicated upon the pleadings and evidence brought on record. A commission cannot be issued merely to obtain an independent report in support of one party's interpretation of the documents or to test the correctness of the factual stand taken by the opposite party. The question is whether the proposed inspection would elucidate some relevant physical feature or circumstance which is not otherwise adequately brought out by the material available.

In this regard, a distinction must be maintained between the existence of a commercial structure, its ownership or control, its actual occupation or vacancy, and its availability and suitability for the purpose for which release is sought. Local investigation may, in an appropriate case, assist the adjudicating authority in ascertaining the physical features or existing condition of a property. The report of a Commissioner, however, cannot by itself determine the questions relating to ownership, actual availability or suitability of the accommodation, much less the bona fide requirement of the landlord. Those matters have to be adjudicated by the Appellate Authority upon consideration of the entire material available on record.

Another relevant consideration is the temporal relevance of the proposed inspection. The release application was instituted in the year 2017, whereas the application for appointment of a Commissioner was moved during the pendency of the appeal. Any inspection carried out pursuant thereto would necessarily disclose the physical condition of the property as on the date of inspection. While such a report may indicate the present condition of the property, it would not, in the absence of other supporting material, establish whether the shops were vacant or available at the time when the release application was instituted or when the question of bona fide requirement fell for consideration. The proposed inspection, therefore, cannot, merely by ascertaining the present physical position, be regarded as necessarily elucidating the controversy arising in the release proceedings.

The petitioner has also emphasised that the disputed shop is the source of livelihood for him and his family and that, at the age of about 64 years, he is dependent upon the business being carried on from the said premises. This Court is conscious of the hardship pleaded by the petitioner. However, such circumstances, though relevant to the overall controversy, cannot by themselves confer upon a party an entitlement to seek appointment of a Commissioner. The issue before this Court is confined to the legality of the order rejecting the application for local investigation. The petitioner shall remain at liberty to rely upon the documents already brought on record and to advance all permissible submissions concerning the availability of alternative accommodation before the Appellate Authority.

Upon consideration of the application, the objections filed by the respondents and the reasons recorded in the impugned order, this Court finds that the Appellate Authority noticed that the municipal assessment documents relating to Property No. 151 were already available on record and declined to direct a further local investigation in the absence of sufficient justification. Though the order is brief, the reason underlying the rejection is discernible. The petitioner has not demonstrated what specific physical feature or circumstance, having a material bearing on the controversy, required elucidation through a commission and could not be adequately addressed by the material already placed before the Appellate Authority. In the circumstances, the proposed inspection appears substantially directed towards obtaining further material in support of the petitioner's plea regarding the existence and vacancy of alternative commercial accommodation, rather than elucidating an aspect of the dispute for which local investigation was requisite or proper.

It is clarified that the observations made herein are confined to the question of appointment of a Commissioner for local investigation and shall not be construed as an expression of opinion on the existence, vacancy, availability or suitability of any alternative accommodation, or on the merits of the release application. The Appellate Authority shall independently examine the municipal assessment documents and the rival submissions of the parties, in accordance with law, without being influenced by any observation made in this order.

In view of the foregoing discussion, this Court does not find any jurisdictional error, patent illegality or material irregularity in the exercise of discretion by the Appellate Authority warranting interference in the exercise of supervisory jurisdiction under Article 227 of the Constitution of India. The impugned order dated 12.05.2026, therefore, calls for no interference.

Accordingly, the present petition is dismissed. However, having regard to the fact that the appeal arises out of proceedings instituted in the year 2017, the Appellate Authority is expected to make every endeavour to decide the same expeditiously, preferably without granting unnecessary adjournments to either party. It is clarified that this Court has not expressed any opinion on the merits of the appeal, which shall be decided independently in accordance with law.