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Mohammad Nazir Khan And Another v. Mohammad Muslim And Another - WRIT - A No. 23655 of 2006  RD-AH 11426 (13 July 2006)
Civil Misc. Writ No. 23655 of 2006
Mohammad Nazir Khan & Another...Petitioners
Mohammad Muslim & Another......Respondents
Hon'ble Krishna Murari, J.
Heard Sri R.S. Maurya, learned counsel for the petitioners and Sri Komal Mehrotra appearing for the contesting respondents.
Challenge in this writ petition has been made to the order dated 29.3.2006 passed by the Appellate Court rejecting the application filed by the tenants-petitioners for issuance of a Commission to carry out spot inspection.
The facts are that an application under Section 21(1)(a) of U.P. Act No. XIII of 1972 filed by the respondents-landlords was allowed by the Prescribed Authority against which the petitioner preferred an appeal. During the pendency of the appeal, an application was filed by the tenants-petitioners for making spot inspection on the ground that shop adjoining to the disputed shop and a godown situate behind were vacated by the father of the tenants-petitioners on the request made by the respondent-landlord. It was also pleaded that one of alleged two unemployed sons of the respondent no.1-landlord started business of general merchant, tea and pan in the said shop, which was closed by him in the year 2004 and thereafter the shop was lying vacant. The appellate Court rejected the application filed by petitioners on the ground that allegations were absolutely vague and the prayer made in the application for the Commission to submit report that how many shutters are there in disputed shop, how many shutters are there in the adjourning shop, etc. has no relevance to the disposal of the controversy between the parties.
Learned counsel for the petitioners has placed reliance on the decision of a learned single judge of this Court in the case of Dwarika Nath Soni versus Bhagwan Das Gupta 2003(1) A.R.C.418. The facts of the said case were entirely different from the present case. In the said case, the application moved by the petitioner for local inspection was rejected by the appellate court merely on the ground that since the Prescribed Authority has not made local inspection it was not necessary. Further allegations therein were that the landlord had constructed shop in the residential building. In those facts and circumstances, this Court had held that the discretion should have been exercised for issuance of a Commission. The facts of the case in hand are entirely different as such the case law relied upon has no application.
The order impugned in the writ petition is an interlocutory order against which normally writ petition is not entertained.
In view of above, the writ petition fails and is dismissed.
However, it is left open to the petitioners to challenge the order rejecting their application for spot inspection in case the judgment of appeal goes against them and he chooses to approach the higher Court against the said judgment.
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