Dinesh Kumar vs Deepak Kumar Arora And Another

HIGH COURT OF JUDICATURE AT ALLAHABAD
MATTERS UNDER ARTICLE 227 No. - 10632 of 2026
Dinesh Kumar
…..Petitioner(s)
Versus
Deepak Kumar Arora and another
…..Respondent(s)
Counsel for Petitioner(s) : Jitendra Kumar, Prasoon Tomar
Counsel for Respondent(s) : Pavan Kumar
AFR
Court No. - 35
HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J.
1. Heard Sri Prasoon Tomar, learned counsel for the petitioner and
Sri Pavan Kumar, learned counsel appearing for the respondents.
2. The petitioner has invoked the supervisory jurisdiction of this
Court under Article 227 of the Constitution of India assailing the order
dated 12.05.2026 passed by the Additional District Judge, Court No. 1,
Bijnor, in Miscellaneous Appeal (Rent Control Appeal) No. 04 of 2023,
whereby the petitioner's application, Paper No. Ga-64, seeking
appointment of a Commissioner for local investigation of the
commercial accommodation situate in Property No. 151, Main Market,
Chowk Bazar, Najibabad, District Bijnor, has been rejected.
3. The respondent-landlords instituted proceedings under Section
21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972, registered as P.A. Case No. 03 of 2017,

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before the Prescribed Authority, Najibabad, District Bijnor, seeking
release of the disputed shop on the ground of bona fide requirement. The
requirement pleaded was for establishing a cosmetic business for Deepak
Kumar, son of the landlord. The petitioner contested the release
application by filing a written statement, disputing the bona fide
requirement set up by the landlords. The Prescribed Authority, however,
allowed the release application by order dated 20.12.2022.
4. Aggrieved by the order of release, the petitioner preferred
Miscellaneous Appeal (Rent Control Appeal) No. 04 of 2023 before the
District Judge, Bijnor. During the pendency of the appeal, the petitioner
moved an application, Paper No. Ga-36, under Order XLI Rule 27 read
with Sections 151 and 141 of the Code of Civil Procedure, 1908, seeking
leave to adduce additional documentary evidence. The case set up in
support of the application was that the landlords owned several
commercial properties and that certain municipal tax assessment records
pertaining to Property No. 151, obtained from the old records of the
Nagar Palika, disclosed the existence of vacant shops in the said
property.
5. The documents sought to be brought on record were filed as Paper
No. Ga-38 and were accepted by the Appellate Authority by order dated
03.04.2024. Thereafter, the petitioner moved an application, Paper No.
Ga-43, supported by an affidavit, Paper No. Ga-44, in relation to the
additional documentary evidence. The respondents filed their objections
thereto through Papers No. Ga-47 and Ga-48.
6. Subsequently, the petitioner moved another application, Paper No.
Ga-64, seeking appointment of a Commissioner for local investigation of
Property No.151, situate in the main market area of Chowk Bazar,
Najibabad. The petitioner asserted that the municipal tax assessment
records already brought on the appellate record indicated the existence
of vacant commercial shops in the said property, whereas the landlords,
through their affidavits, had disputed both the existence and the vacant
status of such accommodation. It was, therefore, contended that a local
investigation was necessary to ascertain the actual physical position of

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the property and determine whether the commercial accommodation
reflected in the municipal records existed and was lying vacant.
7. The application was opposed by the respondents through
objections filed as Paper No. Ga-93. Upon consideration of the rival
submissions, the Appellate Authority rejected the application by order
dated 12.05.2026. The principal consideration informing the rejection
was that the municipal tax assessment records pertaining to Property No.
151 had already been brought on record by the petitioner and that no
sufficient justification had been made out for directing a local
investigation of the same property. Aggrieved by the aforesaid order, the
petitioner has approached this Court.
8. Learned counsel for the petitioner submits that the Appellate
Authority has committed a manifest error in rejecting the application
seeking appointment of a Commissioner without properly appreciating
the relevance and necessity of the proposed local investigation. It is
contended that the release application was instituted by the landlords on
the ground of bona fide requirement of the disputed shop for establishing
a cosmetic business for their son. The availability of other commercial
accommodation belonging to the landlords is, therefore, a material
circumstance bearing directly upon the question of bona fide
requirement.
9. It is further submitted that the municipal tax assessment records
pertaining to Property No.151, which have already been accepted as
additional evidence by the Appellate Authority, disclose the existence of
vacant commercial shops in the said property. The respondents, however,
have disputed the existence as well as the availability of such shops
through their affidavits. In these circumstances, according to learned
counsel, local investigation was necessary to ascertain the actual
physical position of the property and verify whether the commercial
shops reflected in the municipal records were in existence and lying
vacant.
10. Learned counsel submits that the petitioner is not seeking
appointment of a Commissioner for collecting evidence or filling any

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lacuna in his case. The proposed local investigation is intended to
ascertain the physical features and factual position of the property in the
context of the municipal records already brought on record, particularly
when the respondents have disputed the existence and vacant status of
the commercial accommodation reflected therein. It is urged that the
Commissioner's report would assist the Appellate Authority in properly
appreciating the controversy and arriving at a just conclusion while
deciding the appeal.
11. It is further contended that the Appellate Authority has rejected the
application merely on the ground that the municipal assessment records
are already available on record, without appreciating that the entries
contained in documentary records and the actual physical condition of
the property are distinct matters. According to learned counsel, the
municipal assessment records, by themselves, cannot conclusively
establish whether the shops reflected therein physically exist or whether
they are lying vacant and available for commercial use. A local
investigation was, therefore, necessary to ascertain the factual position
which could not be established merely from the documentary entries.
12. Learned counsel also submits that the petitioner is about 64 years
of age and has been carrying on a stationery business from the disputed
shop, which constitutes the sole source of livelihood for his family. It is,
therefore, contended that the petitioner ought to be afforded an effective
opportunity to establish his defence and that refusal to appoint a
Commissioner would cause prejudice to his case. On these submissions,
learned counsel prays that the impugned order be set aside and the
Appellate Authority be directed to allow the application, Paper No.
Ga-64, seeking appointment of a Commissioner.
13. Learned counsel appearing for the respondents supports the
impugned order and submits that the Appellate Authority has committed
no illegality or jurisdictional error in rejecting the petitioner's
application. It is contended that the petitioner has already brought the
municipal tax assessment records pertaining to Property No. 151 on the

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appellate record as additional evidence, and the same are available for
consideration by the Appellate Authority while deciding the appeal.
14. Learned counsel further submits that the application seeking
appointment of a Commissioner is essentially an attempt to collect
further evidence in support of the petitioner's defence under the guise of
local investigation. It is urged that a commission cannot be issued to
enable a party to establish facts which it is otherwise required to prove
by adducing admissible oral and documentary evidence. The questions
relating to the existence, ownership, occupation and availability of
alternative accommodation are matters to be determined by the Appellate
Authority upon appreciation of the evidence brought on record by the
parties.
15. It is further submitted that a local investigation undertaken at this
stage would merely disclose the physical condition of the property as
obtaining on the date of inspection and would not establish whether the
alleged shops were vacant or available to the landlords at the relevant
point of time. According to learned counsel, the proposed exercise
would, therefore, neither resolve the controversy arising in the appeal
nor materially assist the Appellate Authority in determining the bona fide
requirement pleaded by the landlords. The application has, accordingly,
rightly been rejected.
16. Learned counsel also submits that the petitioner cannot claim
appointment of a Commissioner as a matter of right merely because the
respondents have disputed the inference sought to be drawn from the
municipal assessment records. The petitioner has already been permitted
to bring the relevant documents on record, and the respondents have also
been afforded an opportunity to file their objections thereto. The
Appellate Authority is competent to examine the evidentiary value of the
documents and the rival affidavits while adjudicating the appeal. It is,
therefore, submitted that no interference with the impugned order is
warranted and the petition deserves to be dismissed.

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17. The Court has considered the rival submissions advanced on
behalf of the parties and perused the pleadings, the material available on
record and the impugned order passed by the Appellate Authority.
18. The principal question arising for consideration in the present
petition is whether, in the facts and circumstances of the case, the
Appellate Authority was justified in declining to appoint a
Commissioner for local investigation of Property No.151, or whether
such refusal suffers from any jurisdictional error or material illegality
warranting interference in the exercise of supervisory jurisdiction under
Article 227 of the Constitution of India. In particular, the issue requires
examination in the context of the petitioner's contention that the
municipal tax assessment records already brought on the appellate record
do not, by themselves, disclose the actual physical existence and vacant
status of the commercial accommodation reflected therein.
19. Before proceeding to examine the rival submissions, it would be
appropriate to notice the statutory provision conferring upon the
authorities constituted under U.P. Act No. XIII of 1972 the power to
inspect a building or its locality and to issue a commission for local
investigation. Section 34(1)(c) of the Act provides as follows:
" 34. Power of various authorities and procedure to be followed by them-
(1) The District Magistrate, the Prescribed Authority or any Appellate or
Revising Authority shall for the purposes of holding any inquiry or hearing
any appeal or revision under this Act have the same powers as are vested in
the Civil Court under the Code of Civil Procedure, 1908 (Act No. V of 1908),
when trying a suit, in respect of the following matters, namely—
...
(c) inspecting a building or its locality, or issuing commission for the
examination of witnesses or documents or local investigation;
… … ..."
20. The aforesaid provision expressly confers upon the Prescribed
Authority, the Appellate or Revisional Authorities powers analogous to
those vested in a Civil Court under the Code of Civil Procedure, 1908, in
the matters specified therein. The power to issue a commission for local
investigation is thus referable to Section 34(1)(c) of the Act and is
required to be exercised consistently with the principles governing the

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exercise of such power by a Civil Court under Section 75 read with
Order XXVI Rule 9 CPC. Section 75 CPC, insofar as relevant, provides:
" 75. Power of Court to issue commissions . —Subject to such conditions and
limitations as may be prescribed, the Court may issue a commission—
...
(b) to make a local investigation;
… … ..."
Order XXVI Rule 9 CPC provides:
"9. Commissions to make local investigations.—In any suit in which the
Court deems a local investigation to be requisite or proper for the purpose of
elucidating any matter in dispute, or of ascertaining the market-value of any
property, or the amount of any mesne profits or damages or annual net profits,
the Court may issue a commission to such person as it thinks fit directing him
to make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons
to whom such commission shall be issued, the Court shall be bound by such
rules."
21. The power to issue a commission for local investigation is
essentially an enabling provision intended to facilitate the process of
adjudication. The expression "requisite or proper" employed in Order
XXVI Rule 9 CPC is of particular significance. It indicates that the
power is discretionary and is not to be exercised routinely or merely
because a party seeks local investigation in relation to a disputed fact.
The exercise of such power must be preceded by a judicial assessment of
the nature of the controversy and the material available on record, so as
to determine whether local investigation is genuinely necessary or would
otherwise be appropriate for elucidating a matter in dispute. The relevant
consideration is whether the proposed investigation would provide
assistance in resolving the controversy which cannot be satisfactorily
elucidated through the material otherwise available to the adjudicating
authority.
22. The object of appointing a Commissioner for local investigation is
to assist the adjudicating authority in ascertaining and understanding the
physical features, situation or other relevant circumstances of the subject
matter of the dispute. Such investigation is intended to facilitate proper

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appreciation of the controversy by providing objective assistance in
matters where an inspection of the property or its locality would aid the
adjudicatory process. The power, however, cannot be exercised for the
purpose of enabling a party to discharge the burden of proof resting upon
it or to procure evidence which it is otherwise required to establish
through the ordinary process of proof.
23. It is, therefore, necessary to maintain a clear distinction between
elucidation of a matter in dispute and collection of evidence in support
of a party's case. While the former constitutes a legitimate object of local
investigation, the latter falls outside the scope of Order XXVI Rule 9
CPC. A Commissioner cannot be appointed merely to ascertain the
correctness of the factual assertions of one party or to undertake an
independent enquiry for discovering material which may subsequently
be relied upon in support of its case. The provision is not intended to
afford a litigant an additional opportunity to improve the evidentiary
foundation of its pleadings or overcome deficiencies in the evidence
adduced by it.
24. This distinction assumes particular significance in cases where the
controversy relates to the existence, nature, occupation or availability of
alternative accommodation. The physical existence of a property, its
actual occupation, its vacant status and its suitability or availability for a
particular requirement are distinct factual considerations. A local
investigation may, in an appropriate case, assist the adjudicating
authority in ascertaining the physical features or existing condition of the
property. The legal and factual significance of such features, including
the questions of ownership, availability and suitability of the
accommodation for the requirement in question, must, however, be
determined by the adjudicating authority upon consideration of the entire
evidence available on record. The report of a Commissioner cannot, by
itself, substitute the process of judicial determination of these issues.
25. An equally relevant consideration is the temporal significance of
the proposed investigation. A local investigation ordinarily discloses the
physical condition and circumstances obtaining at the time of inspection.

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Where the controversy concerns the availability or vacant status of an
accommodation at an earlier point of time, a subsequent inspection
cannot, by itself, conclusively establish its historical status. The
proposed investigation must, therefore, have a direct and meaningful
bearing upon the controversy requiring adjudication. An exercise which
merely records the physical position obtaining on the date of inspection,
without being capable of elucidating the relevant factual issue, would not
satisfy the requirement contemplated under Order XXVI Rule 9 CPC.
26. The aforesaid principles have recently been considered and
explained by this Court in Romil Jain v. Ashok Kumar Jain and
1
Another . In that case, the petitioner-tenant had sought appointment of a
Commissioner for local investigation of the disputed premises on the
ground that the building constituted a new construction and was,
therefore, exempt from the operation of U.P. Act No. XIII of 1972. The
applications seeking appointment of a Commissioner had been rejected
by the Prescribed Authority as well as the Appellate Authority,
principally on the consideration that adequate documentary evidence
concerning the age and nature of the construction was already available
on record.
27. While examining the scope of Section 34(1)(c) of U.P. Act No.
XIII of 1972 read with Section 75 and Order XXVI Rule 9 CPC, this
Court held that the expression "may issue a commission" employed in
the statutory provisions is enabling and discretionary in nature and does
not confer upon a litigant any vested or enforceable right to insist upon
appointment of a Commissioner. Whether local investigation is requisite
or proper is a matter of judicial discretion, to be determined with
reference to the nature of the controversy, the material already available
on record and the necessity or propriety of such investigation for
effective adjudication.
28. This Court further observed that the power to issue a commission
is intended to assist the adjudicating authority in elucidating a matter in
controversy and cannot be invoked to enable a litigant to collect
1 2026:AHC:138516

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evidence, fill lacunae in its case or embark upon a fishing or roving
enquiry. The mere existence of a disputed factual issue does not, by
itself, furnish sufficient justification for appointment of a Commissioner.
Even where the factual issue sought to be established is material to the
adjudication, the proposed local investigation must independently satisfy
the statutory requirement of being requisite or proper for elucidating the
matter in dispute.
29. The decision further clarifies that where the oral and documentary
evidence available on record is adequate for adjudication of the
controversy, refusal to appoint a Commissioner would constitute a
legitimate exercise of judicial discretion. Local investigation cannot be
converted into a means of strengthening the factual foundation of a
party's case or overcoming an evidentiary deficiency. The controlling
consideration is whether the proposed investigation would genuinely
assist the adjudicating authority in elucidating a matter in dispute, having
regard to the nature of the controversy and the evidence already
available.
30. The principles enunciated in Romil Jain are relevant to the
controversy involved in the present case. They require the adjudicating
authority to examine the precise object for which local investigation is
sought and whether the proposed exercise would genuinely elucidate a
matter in dispute or would merely provide an additional means of
collecting evidence in support of the case set up by the applicant. The
mere fact that a party disputes the factual inference sought to be drawn
from documentary evidence already available on record does not, by
itself, warrant appointment of a Commissioner. The necessity or
propriety of local investigation must be independently assessed in the
context of the particular controversy and the nature of the assistance
which the proposed investigation is likely to provide.
31. The legal position emerging from the discussion may be
summarised thus: The power to appoint a Commissioner for local
investigation is discretionary and is to be exercised judicially, having
regard to the nature of the controversy and the requirements of effective

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adjudication. The mere existence of a disputed question of fact, or a
disagreement between the parties regarding the inference to be drawn
from the evidence already on record, does not, by itself, justify
appointment of a Commissioner. The proposed investigation must be
shown to be requisite or proper for elucidating a matter in dispute. Its
legitimate object is to assist the adjudicating authority in understanding
or ascertaining relevant physical features or circumstances which would
aid the adjudication; it cannot be employed as a means of collecting
evidence, filling an evidentiary lacuna, testing the correctness of a
party's assertion or improving the evidentiary foundation of a case. At
the same time, the availability of oral or documentary evidence on
record does not, by itself, preclude local investigation where an
independent examination of the physical features or circumstances
would genuinely assist in elucidating the controversy. The decisive
consideration, therefore, is whether, in the facts and circumstances of the
particular case, the proposed investigation would serve a legitimate
adjudicatory purpose and materially assist in resolving the matter in
dispute.
 32. Having examined the statutory framework and the principles
governing the exercise of power to appoint a Commissioner for local
investigation, this Court now proceeds to consider whether, in the facts
and circumstances of the present case, the Appellate Authority
committed any jurisdictional error or material illegality in rejecting the
petitioner's application, Paper No. Ga-64.
33. In the present case, the petitioner seeks appointment of a
Commissioner to inspect Property No. 151, situated in the main market
area of Chowk Bazar, Najibabad, to ascertain whether any vacant
commercial shops are available therein. The application is founded upon
the municipal tax assessment documents which were brought on record
by the petitioner during the pendency of the appeal, pursuant to the order
dated 03.04.2024 passed on Paper No.Ga-36. The evidentiary value of
those documents and the inferences, if any, that may be drawn from

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them are matters falling within the domain of the Appellate Authority
while deciding the appeal.
34. It is relevant to note that the petitioner has already succeeded in
bringing the aforesaid municipal records on the appellate record by
invoking Order XLI Rule 27 CPC. The material upon which he seeks to
found his plea regarding the availability of alternative accommodation
is, therefore, available for consideration by the Appellate Authority. The
fact that the respondents have disputed the existence or vacant status of
the shops referred to in those records does not, by itself, render
appointment of a Commissioner necessary or proper. Such a dispute has
to be adjudicated upon the pleadings and evidence brought on record. A
commission cannot be issued merely to obtain an independent report in
support of one party's interpretation of the documents or to test the
correctness of the factual stand taken by the opposite party. The question
is whether the proposed inspection would elucidate some relevant
physical feature or circumstance which is not otherwise adequately
brought out by the material available.
35. In this regard, a distinction must be maintained between the
existence of a commercial structure, its ownership or control, its actual
occupation or vacancy, and its availability and suitability for the purpose
for which release is sought. Local investigation may, in an appropriate
case, assist the adjudicating authority in ascertaining the physical
features or existing condition of a property. The report of a
Commissioner, however, cannot by itself determine the questions
relating to ownership, actual availability or suitability of the
accommodation, much less the bona fide requirement of the landlord.
Those matters have to be adjudicated by the Appellate Authority upon
consideration of the entire material available on record.
36. Another relevant consideration is the temporal relevance of the
proposed inspection. The release application was instituted in the year
2017, whereas the application for appointment of a Commissioner was
moved during the pendency of the appeal. Any inspection carried out
pursuant thereto would necessarily disclose the physical condition of the

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property as on the date of inspection. While such a report may indicate
the present condition of the property, it would not, in the absence of
other supporting material, establish whether the shops were vacant or
available at the time when the release application was instituted or when
the question of bona fide requirement fell for consideration. The
proposed inspection, therefore, cannot, merely by ascertaining the
present physical position, be regarded as necessarily elucidating the
controversy arising in the release proceedings.
37. The petitioner has also emphasised that the disputed shop is the
source of livelihood for him and his family and that, at the age of about
64 years, he is dependent upon the business being carried on from the
said premises. This Court is conscious of the hardship pleaded by the
petitioner. However, such circumstances, though relevant to the overall
controversy, cannot by themselves confer upon a party an entitlement to
seek appointment of a Commissioner. The issue before this Court is
confined to the legality of the order rejecting the application for local
investigation. The petitioner shall remain at liberty to rely upon the
documents already brought on record and to advance all permissible
submissions concerning the availability of alternative accommodation
before the Appellate Authority.
38. Upon consideration of the application, the objections filed by the
respondents and the reasons recorded in the impugned order, this Court
finds that the Appellate Authority noticed that the municipal assessment
documents relating to Property No. 151 were already available on record
and declined to direct a further local investigation in the absence of
sufficient justification. Though the order is brief, the reason underlying
the rejection is discernible. The petitioner has not demonstrated what
specific physical feature or circumstance, having a material bearing on
the controversy, required elucidation through a commission and could
not be adequately addressed by the material already placed before the
Appellate Authority. In the circumstances, the proposed inspection
appears substantially directed towards obtaining further material in
support of the petitioner's plea regarding the existence and vacancy of

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alternative commercial accommodation, rather than elucidating an aspect
of the dispute for which local investigation was requisite or proper.
39. It is clarified that the observations made herein are confined to the
question of appointment of a Commissioner for local investigation and
shall not be construed as an expression of opinion on the existence,
vacancy, availability or suitability of any alternative accommodation, or
on the merits of the release application. The Appellate Authority shall
independently examine the municipal assessment documents and the
rival submissions of the parties, in accordance with law, without being
influenced by any observation made in this order.
40. In view of the foregoing discussion, this Court does not find any
jurisdictional error, patent illegality or material irregularity in the
exercise of discretion by the Appellate Authority warranting interference
in the exercise of supervisory jurisdiction under Article 227 of the
Constitution of India. The impugned order dated 12.05.2026, therefore,
calls for no interference.
41. Accordingly, the present petition is dismissed. However, having
regard to the fact that the appeal arises out of proceedings instituted in
the year 2017, the Appellate Authority is expected to make every
endeavour to decide the same expeditiously, preferably without granting
unnecessary adjournments to either party. It is clarified that this Court
has not expressed any opinion on the merits of the appeal, which shall be
decided independently in accordance with law.
(Dr. Yogendra Kumar Srivastava,J.)
November 04, 2026
Sushma
Digitally signed by :-
SUSHAMA YADAV
High Court of Judicature at Allahabad