A Rent Controller's order appointing a Local Commissioner cannot be used to create evidence for a party that fails to present its case independently.

Judgment

Mr. Sanjay Vashisth, J.

By way of present Civil Revision petition, petitioner-tenant has challenged order dated 31.08.2023 (Annexure P-5), passed by learned Rent Controller, Abohar, whereby application filed by respondent No. 1-landlord for appointment of Building Expert to examine/inspect and submit report regarding the age, condition and collapsed portion of the building in question, has been allowed.

Here-in-after, parties to the lis shall be referred to their original position in the rent petition.

2. Learned counsel for the tenant submits that filing of the application (Annexure P-3) by the landlord itself shows that the evidence is sought to be procured by him by collecting the same through Court order and, therefore, it further shows that eviction petition had been filed by the landlord without there being any proper cause of action alongwith relevant evidence for the same. Learned counsel further refers to the order dated 11.11.2022 (Annexure P-2)[in the said order, date of order has wrongly been typed as ‘11.11.2021’], whereby issues were framed by fixing a date for evidence of the landlord for 16.01.2023. Zimine orders appended with the present petition also shows that the landlord failed to produce any witness on 16.01.2023, 06.03.2023, 09.05.2023 and again on 17.05.2023. Thereupon, application in question was instituted by the landlord on 17.05.2023. Thus, learned counsel submits that it is a clear case, where the landlord has moved application for the purpose of creation of evidence in his favour through the Court order.

3. Notice of motion.

4. At this stage, Mr. K.B. Raheja, Advocate, has put in appearance on behalf of the landlord (respondent No. 1 herein) and insists that he is ready with arguments alongwith case law.

Learned counsel submits that first of all present revision petition is not maintainable because as per settled law, an order of appointment of Local Commissioner, under Order XXVI Rule 9 CPC, is not revisable. In support of his submission, Mr. Raheja has referred to and placed reliance on the judgments passed in the cases of Prem Chand v. Randhir Singh , 2017 (3) R.C.R. (Civil) 167; Rajiv Kumar Batra v. Kashmiri Lal Sika , 2010 (6) R.C.R. (Civil) 37; Bant Singh alias Balwant Singh and another v. Raghubir Singh and others , 2008 (4) R.C.R. (Civil) 260; and Balwinder Kumar and others v. Om Parkash and others (CR-533-2020, decided on 06.01.2023).

Mr. K.B. Raheja further submits that impugned order dated 31.08.2023 (Annexure P-5) has been passed by learned Rent Controller by invoking powers under Order XXVI Rule 10-A CPC, thus, the same is sustainable, keeping in view the fact that aforementioned judgments cited by him are fully applicable in the facts and circumstances of the present case.

5. In response to the submissions of the landlord, learned counsel for the tenant has argued in rebuttal by submitting that judgments cited by the landlord are not even remotely applicable to the facts of the present case because even provision for appointment of local commissioner is not for enabling the party moving application to get the evidence created through Court order. In support of his submissions, learned counsel for the tenant has placed reliance on the judgments passed by this Court (Punjab and Haryana High Court) in the cases of Harpreet Singh v. Gurpreet Kaur and others (CR-5092-2022, decided on 11.11.2022) and Subhash Chand v. Management Committee, Arya College, Panipat (CR-163-2014, decided on 14.01.2014).

6. I have heard learned counsel for the parties as well as g