C.R.No.4212 of 2011 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.4212 of 2011 Date of decision: 28.9.2011 Gurcharan Singh .....Petitioner vs. Harmanpreet Kaur and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.B.B.S.Sobti, Advocate, for the petitioner. Rakesh Kumar Garg,J. This is tenant's revision petition challenging the impugned order dated 15.3.2011 whereby his application for permitting him to get the entire property bearing No.B-XX-2430 and 2431, Gobind Nagar, Ferozepur Road, Ludhiana, inspected and measured from an expert so as to prepare the actual site plan of the entire property with its correct area has been declined. Brief facts which emerges from this petition are that respondent No.1 filed an ejectment application against the petitioner and proforma respondents No. 2 to 5 for their ejectment from the demised premises i.e.shop No.2 as shown in the red in the site plan annexed with the petition forming part of property Unit No.B-XX-2431 bounded as under:- North: Property Unit No.B-XX-2430. South: Ferozepur Road. East: Property of Sajjan Singh & others. West: Property of Manjit Singh situated at Ferozepur Road, Ludhiana” on the ground of non payment of rent, subletting in favour of respondents C.R.No.4212 of 2011 2 No.2 to5 without consent and that the demised premises are required for personal use and occupation. The petitioner is contesting the aforesaid ejectment petition. It is not in dispute that issues have already been framed and the parties are leading evidence. The petitioner moved an application for permitting him to get the entire property bearing No.B-XX/243-D-31, Gobind Nagar, Ferozepur Road, Ludhiana inspected and measured from the expert so as to prepare its correct area submitting that the ground of personal necessity, as averred by the respondent landlord is false as the property in question ( demised premises are part of the main building) is a huge property and there is enough space available with the landlord and she does not require the demised premises for her own use and occupation. She has purposely concealed the total area of the suit property, as such, it is necessary that the entire property as aforesaid be measured and its correct site plan be prepared and since the property leaving aside the premises in dispute and another shop which is under the tenancy of Sandhu Studio is in possession of the landlord and as such the entire property cannot be inspected and measured without the direction of the Rent Controller. It is also alleged that the inspection, actual measurement and actual preparation of the site plan are necessary and essential to meet the false ground of personal necessity taken by the respondents, and therefore, the permission be granted as prayed. The aforesaid prayer was opposed by the respondent landlord submitting that the same was frivolous as respondent landlord has specifically mentioned in the ejectment petition that there are only two C.R.No.4212 of 2011 3 shops in dispute in the property bearing No.B-XX-2431 as also dimensions of the said shops and the remaining portion of the property which is vacant is used for residential purposes and tenant cannot direct the respondent- landlord, if he has some vacant space or plot near the suit property to construct the shop and run his business on such area and, thus, the prayer of the petitioner was liable to be rejected. The Rent Controller while rejecting the prayer of the petitioner observed as under:- “ After hearing learned counsel for both the parties and going through the file, this court finds that petitioner has mentioned the specific boundaries of the shop in dispute and shown the remaining portion as vacant and respondent will be given opportunity to cross examine the witness and given opportunity to ask question regarding measurement, dimensions and other property if he has and as per petition he has to prove ingredients as required by section 13 of the East Punjab Urban Rent Restriction Act and that the petitioner requires the property for personal use and occupation and he has no other property except the property in dispute nor vacated the similar premises within the Municipal limit of the city. Hence, this court does not find any merit in the application and the same stands declined”. Feeling aggrieved from the aforesaid order the petitioner-tenant has approached this Court by filing the instant revision petition. Challenging the aforesaid order, learned counsel for the petitioner has vehemently argued that the petitioner has a right to lead evidence in support of his case and for that purpose whichever evidence he requires and is sufficient and fit enough to prove his defence, he has a C.R.No.4212 of 2011 4 right to lead such evidence and vide impugned order his right to lead evidence has been scuttled. According to the learned counsel for the petitioner, there is enough space in possession of the respondent landlady and the said fact can be proved by allowing the prayer of the petitioner. However, the Rent Controller while rejecting his prayer has not appreciated the aforesaid facts and has denied the opportunity to the petitioner. In support of his case, learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court in the case of Radhey Shyam Rastogi v. Ashish Kumar and another, 2008(4) Civil Court Cases 428 (SC), to contend that the Court can appoint Local Commissioner. Shri Sobti, learned counsel for the petitioner has also relied upon a judgment of the Bombay High Court in the case of Smt.Shamlata & others v. Vishweshwara Tukaram Giripunje & another, 2008 (4) Civil Court Cases 386 (Bombay), to contend that a Local Commissioner can be appointed to measure plot of the parties. He has also relied upon a judgment of this Court in the case of Piara Lal vs. The Liquidator Cooperastive Store, Kapirthala & others, 2004(2) Civil Court Cases 573 (P&H), to contend that the Court has a power to appoint Local Commissioner for the purpose of elucidating any matter in dispute. So far as the judgments relied upon by the learned counsel for the petitioner are concerned, there is no dispute with the provision of law as canvassed in these judgments. However, all the judgments cited by the learned counsel for the petitioner are not applicable in the facts and circumstances of this case. C.R.No.4212 of 2011 5 In Radhey Shyam Rastogi's case (supra) , local commissioner was appointed by the Court to report the condition of a building which was in dilapidated and dangerous condition requiring construction. In the case of Smt.Sham Lata (supra), measurements prepared were not reliable as the same were made after notice to opposite party, whereas in the case of Piara Lal (supra), Court wanted to elucidate the matter, so local commissioner was appointed. In the present case, there is no such existing situation. It may be noticed that there is no dispute regarding the demised premises for the vacant possession of which the respondent landlord has filed the ejectment petition. It is her specific case that except the two shops in question remaining portion in her possession was “residential”. This fact is not in dispute. In fact, the case of the petitioner is that apart from the premises in dispute respondent landlady has sufficient space for her use and occupation. Not only this, in the pleadings, the dimensions of the suit property, even the boundaries of the suit property as mentioned are not disputed by the petitioner. It is well settled that Local Commissioner cannot be appointed to collect evidence on behalf of the litigants. Moreover, it is also well settled that landlord is the best judge of his/her needs and tenant cannot dictate the terms of manner and use of the property in his/her possession. Respondent-landlady is seeking eviction of the petitioner from a commercial property and it is her specific case that except the property in dispute she is not having any other commercial property in the urban area. Thus, the ground of personal necessity as stated by the landlady cannot be C.R.No.4212 of 2011 6 rebutted by leading evidence by measurement of the remaining area of the property in dispute which is in possession of the respondent landlady and which is of residential use. Merely because petitioner has a right to lead evidence does not mean that he can be permitted to lead irrelevant evidence on record under the direction of the Court. Thus, I find no merit in this revision petition and the same is dismissed. (Rakesh Kumar Garg) Judge September 28, 2011 rk