Hon’ble Anil Kumar, J.—Present writ petition has been instituted under Article 226 of the Constitution of India with a prayer to issue a writ or order in the nature of certiorari quashing the impugned order dated 5.2.2010 passed by Additional District Judge, Court, No. 3, Unnao in Rent Appeal No. 4 of 2006(Avinash Chandra Tewari v. Biharishwar Mahadev Trust) by which an application of the petitioner for issue of the commission rejected by opposite party No. 1.

2. Facts in brief as submitted by Sri P.K. Khare, learned counsel for the petitioner are that an application under Section 21(1)(a) of U.P. Act No. 13 of 1972 moved on behalf of respondent No. 2, Sri Biharishwar Mahadeo Ji Trust (hereinafter referred to as ‘trust’) for eviction of the petitioner from the tenanted accommodation situated at House No. 328, Mohalla Jawahar Nagar, City Unnao. Accordingly, a case numbered as P.A. Case No. 14 of 2000 registered before Prescribed Authority, who after exchange of pleadings and other documentary evidence by order dated 8.11.2006, allowed the release application.

3. Aggrieved by the order dated 8.11.2006 passed by the prescribed authority in P.A. Case No. 14 of 2000 (Biharishwar Mahadev Trust v. Sri Avinash Chandra Tewari), petitioner filed an appeal (Rent appeal No. 04 of 2006). In the said appeal an application moved by the applicant/petitioner [numbered as Application No. 116(ga)] for issuing commission. After hearing the parties, the opposite party No. 1 by order dated 5.2.2010 rejected the application moved by the applicant for issuing commission, hence the present writ petition.

4. Sri P.K. Khare, learned counsel for the petitioner while assailing the order dated 5.2.2010, submitted that in order to resolve the controversy involved in the present case, it is necessary to issue the commission, however, the opposite party No. 1 by means of the impugned order in most arbitrary manner, without considering the fact, rejected the prayer made on behalf of the petitioner to issue the commission, the prayer for issuing the commission in the present case is necessary to ascertain whether respondent No. 2 desires the accommodation in question and actually the need of landlord is bonafide or not but while passing the impugned order, the Court below not considered the same and by way of unreasoned order rejected the prayer of the petitioner which is against the law as laid down by the Hon’ble Supreme Court in the case of Radheshyam Rastogi v. Ashish Kumar and another, 2009 UP RCC 56 wherein the Hon’ble Supreme Court in Paragraph No. 5 held as under :

“A plain reading of this order would show that the High Court did not apply its mind while disposing of the writ petition because, while passing the aforesaid order, the High Court in fact was under a wrong impression that the case is passed over for the day on the illness slip of Shri Manish Kumar, learned Counsel appearing for the respondent. The order rejecting the prayer of the appellant for appointment of a Engineer/Advocate Commissioner was not challenged in the said writ petition which was admittedly not the position.”

5. He further submits that the reasoning given by the appellate Court, opposite party No. 1 in the impugned order is also totally in contra-version to the law as laid down by the Apex Court in the case of Special Deputy Collector (L.A.) v. N. Vasudeva Rao, 2008 AIR SCW 435, it held as under :

(Para-15):- “Reliance was placed on two Division Bench Judgments holding that contempt petition was not maintainable before Learned Single Judge as his order had merged with the Division Bench order. As regards Lalith Mathur’s case (supra), the High Court distinguished the judgment on the ground that there was not elaborate discussion in the judgment and therefore no reason is discernible. To say the least, the alleged distinguishing feature as pointed out by the High Court not to follow the judgment cannot be said to be graceful. It is clearly violative of the judicial d