ORDER K.C. Agrawal, J. - This is a tenant's writ petition filed against judgment of the District Judge, Almora dated July 27, 1978 accepting an appeal of Kishori Lal, respondent No. 2. 2. The petitioner was a tenant of, a shop No. 502 Karshana Bazar, Almora. The aforesaid shop was destroyed by fire on 2-4-1973. On 1-5-1973 Kishori Lal, respondent No. 2 filed an application under section 21(1)(a) of U.P. Act No. 13 of 1972 for release of the shop on the ground of his personal requirement. The landlord claimed that he was himself a tenant of a shop and that he was carrying on business in the same but since he wanted to start business in his own shop, he required the requisite order of eviction against the petitioner. 3. The petitioner contested the application. He admitted that the said shop had been burnt. He alleged that it had been reconstructed. The petitioner also claimed that the landlord did not require the shop and that greater hardship was likely to be caused to him from the acceptance of the application. 4. The Prescribed Authority rejected the application on 12-2-1974 holding that the respondent No. 2 Kishori Lal did not have the right to file the application under section 21 of the Act as he was not the sole owner of the building in question. The Prescribed authority also found that the need of the landlord was not bona fide. Consequently, the application was dismissed. 5. Against the said order the landlord preferred an appeal. In the appeal, the petitioner stated that the disputed shop belonged to the landlord. Accordingly, the appellate authority proceeded with the appeal on the assumption that Kishori Lal, the landlord was entitled to file the application under section 21 of U.P. Act No. 13 of 1972. On merits, the learned District Judge held that as the landlord was doing business in a rented shop his need for occupying the disputed premises was bona fide. The appellate authority also found that as the petitioner had alternative accommodation available to him, greater hardship was likely to be caused to the landlord from the rejection of the application. The appellate authority further held that the application filed by the landlord under section 21 was maintainable.
The appellate authority also found that as the petitioner had alternative accommodation available to him, greater hardship was likely to be caused to the landlord from the rejection of the application. The appellate authority further held that the application filed by the landlord under section 21 was maintainable. On these findings, the appeal was accepted and the judgment of the Prescribed Authority rejecting the application of the landlord made under section 21 was allowed. Being aggrieved, the tenant filed the present writ petition. 6. The first question that arises for decision in the present case is about the finding given on the question of bona fide requirement of the premises by the landlord. Section 21 uses the expression "required" which undoubtedly postulates that there be an element of need as opposed to a mere wish or desire. In the instant case, the finding of the learned District Judge was that as the landlord was doing business in a rented shop, the desire of the appellant to occupy his own shop should be considered as sufficient for the purposes of clause (a) of section 21(1) of the Act. To my mind, this was not sufficient. It may be true that the connotation of the word "required" should not be artificially extended and the language of sub-section (1) of section 21 should not be strained so as to make it impossible for a landlord to get an order of eviction, but, nevertheless a landlord cannot succeed unless he establishes that he stands in need of the disputed shop. Merely because the landlord wanted to do business in his own shop, that alone could not satisfy the requirement of clause (a) of sub-section (1) of section 21. The main test should be whether it was necessary for the land- lord to have the premises for his use or occupation unsupported by any other ground, such as the pressure on the landlord to vacate the tenanted shop or the situation or locality. In the absence of such a contingency, the appellate authority was not justified in holding that the requirement of clause (a) of section 21(l) had been established. In this view of the matter, it appears that the appellate authority committed an error in holding that the need of the landlord was bona fide. 7. The finding recorded on the question of comparative hardship also cannot be upheld.
In this view of the matter, it appears that the appellate authority committed an error in holding that the need of the landlord was bona fide. 7. The finding recorded on the question of comparative hardship also cannot be upheld. The reason being that in recording the finding of greater hardship in favour of the landlord, the appellate authority took into account the additional evidence which had been admitted in the appeal. Under section 22 of U.P. Act No. 13 of 1972, under which the appeal had been filed, provisions of section 10 shall mutatis mutandis be applied in relation to such an appeal. Reverting to section 10 of the aforesaid Act, it would be found that sub- section (2) of the said section confers powers on an appellate authority to take additional evidence. It is further restricted by section 34 of the said Act. Sub-section (1) of section 34 provides that an appellate authority shall have the same powers in respect of holding an inquiry of hearing an appeal as are vested in a civil Court. This takes us to the provisions of Order 41 Rule 27 Code of Civil Procedure, inasmuch as this provision deals with the admission of additional evidence in appeal. Order 41 Rule 27 lays down certain conditions for admission of additional evidence. A party is not entitled to produce the additional evidence unless it proves or satisfies one of the grounds mentioned therein. The court below was therefore required to record reasons and to find out one of the grounds before admitting additional evidence. It does not have the power of admitting additional evidence without giving reasons for the same. The order admitting the additional evidence must show the ground which led it to take the additional evidence. Furthermore, the party against whom the additional evidence is taken is entitled to produce evidence in rebuttal and the court is required not only to consider the additional evidence filed by a party in the appeal but also the evidence which had been filed in rebuttal. 8. In the instant case it would be seen that the appellate authority admitted the additional evidence without assigning any reasons for doing so. The additional evidence adduced by the landlord was the affidavit stating that the tenant was possessed of the additional accommodation. The additional accommodation consisted of two shops numbered 503 and 504.
8. In the instant case it would be seen that the appellate authority admitted the additional evidence without assigning any reasons for doing so. The additional evidence adduced by the landlord was the affidavit stating that the tenant was possessed of the additional accommodation. The additional accommodation consisted of two shops numbered 503 and 504. According to the affidavit of landlord these two shops initially had been let out to Mohammad Yamin, the brother of the petitioner. The landlord alleged that after the death of Mohammad Yamin a portion of the shop no. 503 had been surrendered to its owner whereas the other portion of this shop as well as shop No. 504 were in occupation of the petitioner and that he was doing business in the same. The tenant had filed counter affidavit controverting the affidavit of the landlord and had stated therein that after the death of Mohd. Yamin his widow was doing business in shop Nos. 503 and 504. The tenant further claimed that she was carrying on the business with the help of the son of the petitioner, but the allegations of the landlord that the petitioner was in possession of these shops was incorrect It, however, appears that the appellate Court did not refer to the evidence of the tenant and confining himself to the evidence of the landlord found that the petitioner was doing his business in these shops. There could be no objection if the appellate authority had given reasons for admitting additional evidence and had further considered the evidence of the tenant and there- after recorded the finding that the tenant was possessed of an alternative accommodation. In the absence of reasons for admitting additional evidence, the judgment of the appellate authority cannot be upheld. As already observed above, the power of admitting additional evidence by a court of appeal is circumscribed by the conditions mentioned in clauses (a), (b) and (c) of sub-rule (2) of rule 27, order 41. It further requires that whenever additional evidence is allowed to be produced by an appellate court, the court should record the reasons for its admission. The object of rule 27(2) clearly is to keep a clear record of what weighed with the appellate authority in allowing the additional evidence to be produced.
It further requires that whenever additional evidence is allowed to be produced by an appellate court, the court should record the reasons for its admission. The object of rule 27(2) clearly is to keep a clear record of what weighed with the appellate authority in allowing the additional evidence to be produced. The omission to record the reason must, therefore, be treated as a serious defect In this view of the matter the judgment of the appellate authority is liable to be quashed. 9. In view of what I have said above, the writ petition succeeds and is allowed. The judgment and order of the District Judge Almora dated 27th July, 1978 is quashed. The appellate authority is directed to decide the appeal afresh in accordance with law and in the light of the observations made above. There shall be no order as to costs.