JUDGMENT - Padhye R.S., J.-This is a petition by tenant Ramsevak challenging an order passed by the Rent Controller, Murtizapur in Rev. Case No. 23 /71 /70-71 of Murtizapur on an application filed by respondent Ramesh, landlord, for permission to terminate the tenancy of petitioner. This order of Rent Con­troller was challenged by the petitioner in Rev. Appeal No. BRA. 13(3) Murtizapur/5/75-76 before the Resident Deputy Collector, Akola but without success. According to the petitioner both these orders deserve to be set aside. 2. It will be sufficient to point out that the original application filed by Ramesh was for grant of permission to terminate the tenancy of Ramsevak under the provisions of sections 13(3)(i)(ii)(iv) of the C. P. Berar Letting of Houses and Rent Control Order 1949 (for short referred to hereinafter as Rent Control Order) in respect of one block on the eastern side bearing Muni­cipal House No. 196 of the building situated on Nazul plot No. 1 in ward No. 16 of Murtizapur town, district Akola. Prayer for grant of arrears of rent pertained to period from March 1970 to November, 1970 and it was claimed that the rent was payable at Rs. 20 per month. On the basis of evidence of previous landlord Bajirao from whom respondent Ramesh pur­chased the house, the learned Rent Controller came to a conclusion that the rent per month of the block in question was neither Rs. 10 as alleged by tenant Ramsevak nor Rs. 20 as alleged by the landlord Ramesh but was Rs. 15 per month. On that basis arrears were worked out at Rs. 135 only and deducting an amount of Rs. 10 which was sent by money order by tenant Ramsevak immediately after the purchase of house by Ramesh from previous owner Bajirao on 22-2-1970, a direction to pay Rs. 125 towards arrears of rent within 3 months was given. Ramesh did not challenge this order with the result that it has become final. Prayer for need to occupy the house was also rejected. The learned Rent Controller, however, felt that applicant Ramesh had establi­shed a case of habitual defaulter in payment of Rent and in that view of the matter he was pleased to grant permission to terminate the tenancy of Ram­sevak under section 13 (3)(i)(ii) of the Rent Control Order. All the findings of the learned Rent Controller were maintained in appeal. The learned Rent Controller, however, felt that applicant Ramesh had establi­shed a case of habitual defaulter in payment of Rent and in that view of the matter he was pleased to grant permission to terminate the tenancy of Ram­sevak under section 13 (3)(i)(ii) of the Rent Control Order. All the findings of the learned Rent Controller were maintained in appeal. During the course of appeal an application was filed on behalf of the appellant 'Ramsevak on 24-9-1975 and it is at page 28 of the original appellate record. It was stated in this application on behalf of the appellant that certain important documents being the documents in the nature of public documents remained to be filed in the trial Court on account of inadvertence and, therefore, permission to file the said documents at appellate stage should be granted. This application was not rejected on the ground that there were no sufficient grounds made out for not filing the documents at an early stage in the trial Court but it was rejected on the ground that “the filing of documents at appellate stage would cause prejudice to respondent as no opportunity would.be there to explain the same”. The documents along with this application are copies of assessment list disclosing that assessment of rent of the relevant block was at Rs. 10 per month, the copy of assessment order alongwith the statement by landlord Ramesh that tenant Ramsevak be assessed at Rs. 144 per year and 10 money order coupons pertaining to the relevant period between March, 1970 to November, 1970 indicating that tenant continued to send Rs. 10 per month as rent to landlord Ramesh. Out of these coupons, endorsement of refusal to accept money order appears on only one and, therefore, it is not known whe­ther all these money orders were accepted or refused. Shri Madkholkar, learned counsel for the petitioner submitted that clause 21(2) of the Rent Control Order makes it necessary that the appellate Court is not only to peruse the record but also to make 'such further enquiry' as the appellate Court deems fit either personally or through Rent Controller before deciding the appeal and rejection of application to file additional documents on record merely on the ground that it would result in prejudice to the respon­dent was nothing but refusal to exercise jurisdiction under clause 21(2) of the Rent Control Order by the appellate Court. Clause 21(2) of the Rent Control Order is as under :- “The Collector shall then send for the record of the case from the Controller and after perusing such record and making such further enquiry as he may think fit, either personally or through the Controller, shall decide the appeal.” Shri Madkholkar placed reliance on a decision in support of his contention referred to above reported in (Bhavani Prasad v. Harprasad)1. It was observed by the Division Bench of the then Nagpur High Court in this case that clause 21(2) of the C. P. and Berar Letting of Houses and Rent Control Order, 1949 permitted the Deputy Commissioner in Appeal to receive evidence of his own accord. In the present case, there is a regular application praying for receiving evidence at appellant stage and, therefore, the question whether the evidence should be recorded by appellate Court under clause 21(2) of the Rent Control Order suo-motu does not arise. Another decision of the Division Bench of Nagpur High Court reported in the same volume of 1953 N. L. J. Note 213, was also referred for the purpose of pointing out that though the appellate Court exercised powers under clause 21(2} of the Rent Control Order it could not remand the case and that it had powers to hold further enquiry either by itself or through Rent Controller. This decision was approved by a learned Single Judge of this Court in (Noor-Jahan Khanam v. S. B. Bais Others)2 by observing that appellate authority can call upon Rent Controller to record further evidence or make further enquiry and then to submit the record to the appellate authority for its final decision. 3. In view of the clear wording of clause 21(2) of Rent Control Order, I do not think that it could be gain-said that appellate Court had every power of making further enquiry as it deemed fit either personally or through Rent Controller before deciding the appeal. The question as in the present case which is material for decision is as to whether refusal to exercise this power could be justified or not. The question as in the present case which is material for decision is as to whether refusal to exercise this power could be justified or not. As pointed out earlier, application for recording of additional evidence or for permission to place certain documents on record at appellate stage could not have been rejected merely on the ground that by allowing such application respondent would be prejudiced because it is obvious that if such permission is granted, further enquiry that is contemplated by clause 21(2) of the Rent Control Order also contemplates permission to respondent to rebut the evidence which has been allowed to be placed on record at the instance of the appellant. I have no doubt, there­fore, in my mind that the appellate Court failed to exercise jurisdiction when it refused to consider the application of petitioner for filing additional docu­ments on record merely on the ground that granting such permission would result in prejudice to the respondent. 4. The proceedings are pending from the year 1970-71 as pointed out by Shri Phadnis, learned counsel for the respondent Ramesh. It can be argu­ ed that even sending of an amount of Rs. 10 per month as rent would amount to a habitual default in certain specified circumstances. But, I am not prepar­ ed to examine this question which is a pure question of facts in these proceed­ ings. I feel that the matter should be remitted back to the appellate Court with a direction to consider the application of the petitioner for filing addi­ tional documents on record or for recording of additional evidence in terms of clause 21(2) of the Rent Control Order and in case the Appellate Court decides to hold further enquiry, as ordinarily, it should, it should give oppor­ tunity to respondent Ramesh to adduce evidence in rebuttal. The appellate Court may, if it so decides, record additional evidence either by itself or get it recorded through Rent Controller within a period of 3 months from the date of receipt of records. 5. The result, therefore, is that the appellate order at Annexure 'D' is quashed and set aside with a direction to the appellate Court as indicated above. Rule is made absolute in these terms. There will be no order as to costs. Order accordingly.