Hon’ble Anil Kumar, J.—Heard Sri Satya Prakash learned counsel for the petitioner and Sri P.C. Misra, learned Standing Counsel for opposite party No. 1 and learned counsel for opposite parties No. 2 to 7.

2. In brief, the facts of the present case are that one Dwarika Prasad Sahu was the owner of the house No. 133/351, Aminabad Road. Police-station Naka Hindola, Lucknow and in the said premises one Ram Prasad was tenant in respect of the shop and Khandhar on the ground floor. The landlord moved an application on 14.12.1985 for release of the premises in question which is under the tenancy of the tenant (Ram Prasad) and accordingly, P.A. Case No. 60 of 1995 was registered in the Court of Judge Small Causes Court/Prescribed Authority, Lucknow. During the pendency of the P.A. Case, the original landlord and the tenant both had expired as such their heirs were substituted. By order dated 24.8.2000, the prescribed authority had allowed the release application.

3. The said order was challenged by way of appeal (Rent Appeal No. 22 of 2000) and the same is pending for adjudication in the Court of Additional District Judge, Court No. 13, Lucknow. During the pendency of the appeal filed on behalf of the tenant an application under Section 34 of the U.P. Act No. 13 of 1972 for issuing a Commission was moved and the same was rejected by the appellate authority.

4. The said order was challenged before this Court in Writ Petition No. 153(M/S) of 2003, Smt. Durgawati and others v. III Additional District Judge, Lucknow and others, and by order dated 29.1.2003 this Court had disposed of the same by following directions :

“Accordingly, the impugned order passed by the Court below is held to be illegal and is set aside. The matter is sent back to the Court below with a direction that it shall re-hear the parties and their learned counsel on the application for issue of commission and shall pass suitable and speaking order according to law.”

5. Moreover, during the pendency of the appeal, Sri Chottey Lal one of the tenant had died and an intimation was given to the Court regarding his death but no formal application for substitution was filed as required under the Act. Since the application for substituting the heirs of Chhotey Lal was not filed, so the landlord/opposite parties in appeal moved an application for abatement of the same on the ground that no substitution application was filed within time and therefore, the appeal stands abated. By order dated 11.1.2007, the appellate authority had dismissed the Rent Appeal No. 22 of 2000 has abated. The said order was challenged by the tenant before this Court by way of Writ Petition No. 13 (R/C) of 2007 (Smt. Durgawati and others v. Additional District Judge, Court No. 3, Lucknow and others) and on 9.4.2008 the writ petition was allowed and the order dated 11.1.2007 was set aside and a direction was also given that Rent Appeal No. 22 of 2000 be disposed of as expeditiously as possible and parties are directed to appear before the Additional District Judge, Court No. 3, Lucknow on 1.5.2008.

6. Thereafter on 17.7.2008, petitioner-tenant moved an application for issuance of Commission before opposite party No. 1 which was registered as paper No. C-88 to which opposite parties No. 2 to 7 filed their objection (C-92). After hearing the parties, respondent No. 1 by order dated 25.4.2009 had rejected the application for issuance of Commission, hence the present writ petition.

7. Sri Satya Prakash, learned counsel for the petitioner has assailed the order dated 25.4.2009 passed by opposite party No. 1 on the ground that the same is illegal, mala fide and arbitrary in nature and the Appellate Court has wrongly observed that Khandhar will come within the definition of building whereas the Khandhar was a part and parcel of the shop and was one tenement and was also the subject matter of release as such the commission is necessary in order to bringing the truth on record.

8. Sri P.C. Misra, learned c