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2003 DIGILAW 276 (PNJ)

Harcharan Singh v. Ashok Kumar

2003-02-13

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This petition filed under sub-section (5) of Section 15 of the East Punjab Urban Rent Restriction Act, 1949 (for brevity `the Act) challenges the order dated 22.5.2001 passed by the Appellate Authority, Hoshiarpur allowing the application of the landlord-respondent for adducing additional evidence on the principles enunciated in Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for brevity `the Code). The principal ground granting permission to adduce evidence is that the aforementioned evidence is necessary to enable the Court to pronounce the order. For the purposes of adducing additional evidence, a report has been asked for by the Appellate Authority from the Rent Controller who has directed to record the additional evidence of the landlord-respondent, rebuttal evidence of the tenant- petitioner and also to make such further enquiry as it thinks fit. The report is required to be submitted within a period of two months. The Appellate Authority has recorded the following order while allowing the application of the landlord-respondent : "Appellant is relying upon the documentary evidence and, therefore, question of fabricating the same does not arise. Selection 15 of the Act gives powers to the Appellate Court in appeal not only to hear the parties, but also if it finds necessary after examining other evidence to pronounce the order. Thus, the powers of the Appellate Authority under the Act are not limited in terms of the provisions of Order 41 Rule 27 of the Civil Procedure Code. Where the Appellate Authority feels that in fairness and in the interest of justice and for proper adjudication of the main points in case it is necessary that documents of a party be put in the evidence, the order is in accordance with law. In the present case, as the evidence now proposed to be led by the appellant is necessary to enable the court to pronounce order and, therefore, in the interest of justice and fair play, application of the appellant for additional evidence is allowed. It is further ordered that report should be called from the learned Rent Controller in terms of the provisions contained in section 15(3) of the Act. Learned Rent Controller should record the additional evidence as mentioned in the application moved by the appellant and an opportunity should be given by the learned Rent Controller to the respondent. It is further ordered that report should be called from the learned Rent Controller in terms of the provisions contained in section 15(3) of the Act. Learned Rent Controller should record the additional evidence as mentioned in the application moved by the appellant and an opportunity should be given by the learned Rent Controller to the respondent. File of the trial court be sent back to the learned Rent Controller who should record the additional evidence of the appellant, rebuttal evidence of the respondent and make such further enquiry as it thinks fit and then submit a fresh report on the basis of evidence already recorded and the evidence now allowed to be recorded as to whether the appellant requires the disputed shop for his own use or not. This report should be submitted within a period of two months. Parties should appear before the learned Rent Controller on 2.6.2001." 2. Shri K.S. Dadwal, learned counsel for the tenant-petitioner has argued that under Order 41 Rule 27 of the Code only such additional evidence could be permitted to be adduced which with due diligence and care could not have been adduced by the party. He has further argued that adducing of additional evidence could not be permitted in a case where ration card, electricity bills and other documents are sought to be tendered in evidence because all these documents were well within the knowledge of the landlord-respondent. He further submitted that it would amount to permitting the lacuna to be filled up which might have been left when the opportunity of adducing evidence was granted. He has referred to the provisions of Order 41 Rule 27 of the Code and has also relied upon a judgment of the Supreme Court in the case of Balbir Singh v. Balkiar Singh, 1993(1) RCR(Rent) 1 (P&H) : 1983(1) P.L.R. 470. 3. Shri P.K. Gupta, learned counsel for the landlord-respondent has argued that the landlord-respondent had filed an application for adducing additional evidence before the Rent Controller which was dismissed. Against the order of dismissal, Civil Revision No. 5815 of 1999 (Ashok Kumar v. Harcharan Singh) was preferred in this Court by the landlord-respondent which was not pressed but permission was given to him to challenge the order rejecting his application for additional evidence in appeal. Against the order of dismissal, Civil Revision No. 5815 of 1999 (Ashok Kumar v. Harcharan Singh) was preferred in this Court by the landlord-respondent which was not pressed but permission was given to him to challenge the order rejecting his application for additional evidence in appeal. Photocopy of the order dated 29.11.1999 passed in Ashok Kumars case (supra) has been placed on record as Annexure "A". On the basis of the aforementioned submissions, the learned counsel states that no harm would be caused to the tenant-petitioner because the Appellate Authority felt adducing of additional evidence necessary for the purposes of pronouncing the order. The learned counsel has further argued that the provisions of Order 41 Rule 27 of the Code are not applicable stricto sensu to the Rent Tribunal. Therefore, similar limitations which are imposed by Order 41 Rule 27 of the Code cannot be imposed on the exercise of power on the Appellate Authority. According to the learned counsel there is ample power under sub-section (3) of Section 15 of the Act with the Appellate Authority to ask for the report of the Rent Controller on any issue and then pronounce the order. 4. After hearing the learned counsel for the parties, I am of the considered view that the instant petition is devoid of merit and is thus liable to be dismissed because once the landlord-respondent has been permitted by this Court to challenge the order declining his application for adducing additional evidence then the right of the landlord-respondent cannot be further prejudiced especially when the Appellate Authority has felt the necessity of adducing additional evidence for the purposes of pronouncing the order. It is well settled that the provisions of the Code would not ipso facto apply to the statutory Tribunals which are creature of a statute. The Tribunal with the object of doing justice can always devise its own procedure. Moreover, under sub-section (3) of Section 15 of the Act there is ample power vested in the Appellate Authority to call for a report from the Rent Controller and make a reference which would of course be in the interest of justice. The question whether the Appellate Authority possesses jurisdiction to permit adducing of evidence fell for consideration of the Supreme Court in the case of Yudhishter v. Ashok Kumar, 1987(1) RCR(Rent) 225 (SC) : 1987(1) SCC 204. The question whether the Appellate Authority possesses jurisdiction to permit adducing of evidence fell for consideration of the Supreme Court in the case of Yudhishter v. Ashok Kumar, 1987(1) RCR(Rent) 225 (SC) : 1987(1) SCC 204. There the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 were considered and their Lordships upheld the order of the Appellate Authority whereby adducing of additional evidence was allowed. The observations of their Lordships in this regard read as under : "The appellate authority, it must be mentioned, has normally the same jurisdiction to admit additional evidence as the trial Court if the facts and circumstances so warrant. Furthermore, in the instant case Section 15 of the Act deals with the powers of the appellate and revisional authorities under the Act. Sub- section (4) of the said section specifically provides that if necessary, after further enquiry as it thinks fit either personally or through the Collector, the appellate authority shall decide the appeal. Therefore, the appellate authority has by express provision jurisdiction to admit additional evidence. Indeed in this case from the written statement, it appears that the only contention that was sought to be raised was about the extent of the accommodation available to the landlord in the ancestral house of the landlord. The allegation about the alleged sale of the premises near Kabir Bhavan was not clearly spelled out. Therefore, if the interest of justice so demanded, the appellate authority was justified in admitting the additional evidence. The parties in this case had ample opportunity to test the veracity and to examine and submit on the value of such additional evidence. No prejudice could be said to have been caused by admission of such additional evidence. In State of Kerala v. K.M. Charia Abdullah and Co., 1965(1) SCR 601, this Court was dealing with similar power under Madras General Sales Tax Act, 1939 and observed at page 610 of the report that but Sub-section (4) of Section 250 of the Income Tax Act, 1961 which is similar to Section 33(4) of the Income Tax Act, 1922, the Commissioner was authorised for disposing of the appeal to make such further enquiry or to direct the Income Tax Officer to make further enquiry as he thought fit and report upon them. This Court held that it could not be denied that the said sub-section conferred upon the appellate or revising authority power to make such enquiry as it thought fit for fair disposal of the appeal. We are, therefore, clearly of the opinion that in the facts and circumstances of a particular case, the appellate authority has jurisdiction under the Act in question to admit additional evidence. We are further of the opinion that in this case admission of such additional evidence was warranted by the facts and the pleadings in this case. We are satisfied that by such admission of evidence, no prejudice has been caused to the appellant. Indeed reading of the order of the appellate authority makes it abundantly clear that the appellate authority had adverted to all the facts recorded by the Rent Controller and further considered the additional evidence. It is true that in referring to the findings of the Rent Controller, the appellate authority in its order had not specifically referred to the paragraphs of the order of the Rent Controller but that does not mean nor does it indicate that the appellate authority had not considered evidence adduced before the Rent Controller. We are, therefore, unable to sustain the objection urged on behalf of the appellant by Shri Banerji, on admission and consideration of the additional evidence." 5. Similar view has been take by the Supreme Court in Gulabbai v. Nalin Narsi Vohra, 1991(2) RCR(Rent) 453 (SC) : 1991(3) SCC 483. Therefore, I do not find any legal infirmity in the impugned order of the Appellate Authority. 6. For the reasons stated above, this petition fails and the same is dismissed. Parties through their counsel are directed to appear before the Rent Controller in accordance with the directions issued by the Appellate Authority on 28.2.2003.