Yaar Mohd.@ Pahalwan vs Mehmood Khan and Others

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.

The premises in dispute is a residential accommodation, bearing No. 88/488A, 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 18111998 by order, Annexure5 to the petition. Against the order of release, the petitioner preferred an appeal 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. Annexure6 to the petition to examine the extent of accommodation 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 1732001 by order, Annexure8 to the petition. Aggrieved by the order, the petitioner has preferred this petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

The application for issue of commission has been rejected mainly on two grounds; firstly, that such an application for issue of commission was rejected by the Court below on 181998 and, secondly, that the landlord allege that they are living in the above accommodation as licensee.

As regard the first ground mentioned by the appellate Court is concerned, it does not appear correct. The rejection of application for issue of commission by the trial Court cannot operate resjudicata 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 accommodation 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.

In view of the above, respondent No. 3 has erred in rejecting the application.

The petition is, therefore, allowed. The respondent No. 3 will issue a commission as requested in the application, Annexure6 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 appeal in the garb of the issue of commission.

With this observation, the petition is disposed of. Petition allowed.