2025:UHC:34 HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Misc. Single No. 3558 of 2024 03 January, 2025 Akbar Hussain --Petitioner Versus Shambhunath & another --Respondents With Writ Petition Misc. Single No. 3621 of 2024 Shakeel Ahmad --Petitioner Versus Shambhunath & another --Respondents ------------------------------------------------------------------- Presence:- Mr. T.A. Khan, learned Senior Counsel, assisted by Mohd Shafy Advocate for the petitioners. Mr. Siddhartha Singh and Mr D. S. Negi, learned counsels for the respondents. ------------------------------------------------------------------- JUDGMENT Since common questions of law and fact are involved in these writ petitions, therefore they are heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition (M/S) No. 3558 of 2024 alone are being considered and discussed. 2. Petitioner is tenant in respect of a shop situate in Moradabad Road, Kashipur, District Udham Singh Nagar. Respondents filed a suit for rent & ejectment against the petitioner before learned Judge, 1 2025:UHC:34 Small Cause Court, Kashipur, which was registered as S.C.C. Suit No.08 of 2017. Petitioner moved an application in the said suit for issuing Commission to ascertain age of the building. His application was rejected by learned Judge, Small Cause Court vide order dated 10.05.2024. Petitioner filed Revision challenging trial Court’s order. His Revision filed under Section 25 of Provincial Small Cause Courts Act, 1887 has been dismissed by learned First Additional District Judge, Kashipur vide judgment dated 13.11.2024. Challenging these two judgment & orders, petitioner has approached this Court. 3. In the plaint of the suit, respondents had pleaded that that the shop in question was constructed and assessed to Municipal Taxes, after the cutoff date indicated in the second proviso to Section 2(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 i.e. 15.04.1985. Thus, plaintiffs had contended that provisions of the said Act are not applicable to the premises in question, therefore, suit for rent & ejectment is maintainable against the petitioner. Petitioner, in his Written Statement, however, contended that the building was constructed before the cutoff date i.e. 15.04.1985 and, therefore, 2 2025:UHC:34 provisions of the aforesaid Act are attracted and suit for ejectment would not be maintainable against him. Before the trial Court, petitioner moved an application with the prayer to issue Commission, which may inspect the shop and submit a report regarding date of construction of the shop in question. Learned trial Court rejected petitioner’s application by holding that date of construction of the shop is not relevant and date of first assessment of the shop for Municipal Taxes would be relevant for applicability of the aforesaid Act. Petitioner challenged trial Court’s order in a Revision and Revisional Court has affirmed the order passed by trial Court. 4. This Court does not find any reason to interfere with the trial Court’s order, as affirmed by Revisional Court. Since petitioner asserted in his Written Statement that provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 are attracted, as the shop in question was constructed before 15.04.1985, therefore, onus is upon him to prove the said fact by adducing evidence. To go for local inspection or issue Commission for just decision in the suit is the sole prerogative of the Court. Inspection by Court or through Court appointed 3 2025:UHC:34 commissioner is resorted to only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion or where the Court feels that there is some ambiguity in the evidence which needs to be clarified by making local inspection or through Commission. Thus, local inspection or issuing a Commission by the Court, cannot be claimed as of right by any party to a suit. 5. Since a party to the suit cannot request the Court to collect evidence for him and every party to the suit has to stand on his own legs by adducing independent and reliable evidence, therefore, rejection of petitioner’s application by learned trial Court, cannot be faulted. The Revisional Court was thus justified in affirming trial Court’s order. 6. Thus, there is no scope for interference in the matter. The writ petitions fail and are dismissed. It is, however, made clear that the pending suit shall be decided by learned trial Court uninfluenced by any observation made in the judgment and orders impugned in these writ petitions. ________________________ MANOJ KUMAR TIWARI, J. Navin 4 NAVEEN CHANDRA Digitally signed by NAVEEN CHANDRA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3be23325146e76a0642bdf4943fb9046f487df006da82a131bb4e4403d3c0a15 , postalCode=263001, st=UTTARAKHAND, serialNumber=18167EEFB5CA8CFFD421A103819DA875643AF56D653D095C6ED9A86 DAAB21CE5, cn=NAVEEN CHANDRA Date: 2025.01.04 13:47:55 +05'30'