A commission cannot be issued for collecting evidence; it is only permissible to clarify ambiguities in existing evidence.

JUDGMENT

Piyush Agrawal, J.

Heard Mr. Krishna Mohan Garg for the petitioner and Mr. Jitendra Pal Singh Chauhan for the respondent.

2. The present petition u/a 227 has been filed against the order dated 18.5.2024 passed by the Additional District & Sessions Judge / F.T.C., Court No. 2 Bijnor in Misc. Civil Appeal No. 2 of 2023 (Sirajudding Khan v. Laxmi Chandra) by which the application vide paper no. Ga-43 for issuance of a commission, has been rejected.

3. Learned counsel for the petitioner has submitted that respondent has filed an application under Section 21 (1) (a) of UP Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, against the petitioner in the court of Prescribed Authority Najibabad for release of shop in question, which is under the tenancy of the petitioner. After adducing the evidence by the parties, the Prescribed Authority has allowed the release application on 21.12.2022 without considering the material on record. Feeling aggrieved to the said order, the petitioner has filed a Rent Control Appeal No. 2 of 2023. During pendency of the said appeal, the petitioner moved an application for issuance of commission vide paper no. Ga 43, which has been rejected by the impugned order.

4. Learned counsel for the petitioner has submitted that release application has wrongly been allowed on the ground of need of the son of the respondent-applicant. He further submitted that respondent-applicant has other accommodation, therefore, the need was not bona fide but by the impugned order, the application paper no. Ga-43 filed by the petitioner, has wrongly been rejected. He prays for allowing the present petition.

5. In support of his submission, leaned counsel for the petitioner has relied upon the judgements of this Court in the cases of Dwarika Nath Soni v. Bhagwan Das Gupta, 2003 (1) ARC 418 and Parsadi Lal Halwai v. Prescribed Authority and another, 1983 (2) ARC 434.

6. Per contra, learned counsel for the respondent has submitted that application for issuance of a commission has been made with a view to delay the proceeding. He submitted that at this stage, commission cannot be issued for collecting the evidence. The court below after perusal of evidence on record has allowed the release application. He further submitted that if the petitioner is aggrieved, it is always open for him to challenge the outcome of the appeal.

7. In support of his submission, learned counsel for the respondents has relied upon the judgements of this Court in the cases of (i) Abdul Aziz v. Sri. Khalil Ahmad and others, 2014 (1) ARC 312, (ii) Tamanna Bano @ Sadhana Devi v. Imran Ahmad and others, 2010 (9) ADJ 428, (iii) Smt. Meena Begum v. Additional District Judge, [2018] 2 ARC 639 and (iv) Mohammad Ibrahim v. Ashok Kumar Agarwal, 2018 (2) ARC 417.

8. After hearing learned counsel for the parties, the Court has perused the records.

9. By the order dated 21.12.2022, the release application of the respondent was allowed by reasoned order, against which, an appeal was preferred by the petitioner and during pendency of the said appeal, an application paper no. Ga-43 was filed for issuance of a commission, which was rejected by the impugned order. It is settled law that a commission cannot be issued for collecting evidence. It can be issued in cases where on evidences led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection by the commission. The issuance of commission by the Court cannot be claimed as a right by any of the parties.

10. The said view has been express in the case of Smt. Meena Begum (supra); relevant para of which is quoted hereunder:-

"13- The second submission for attacking on the impugned judgments on the ground of rejection of the application for Advocate Commission, is also wholly misconceived.

14- Perusal of the order dated 20.5.2016 in P.A. Case No.64 of 2013 passed by