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2005 DIGILAW 1059 (ALL)

Amarwati v. A. D. J.

2005-05-26

VIKRAM NATH

body2005
VIKRAM NATH, J. ( 1 ) THESE two writ petitions have been filed by the defendants for quashing the order dated 7. 2. 1990 passed by Xlth Additional District Judge, Moradabad (respondent No. 1) in Civil revision No. 92 of 1985 and Civil Revision No. 93 of 1985, whereby the application filed by the plaintiff revisionist (respondent No. 2) for admitting the additional evidence has been allowed and the objections of the petitioners have been rejected. ( 2 ) THE dispute relates to the properties mentioned in Schedule a to the plaint of Suit No. 129 of 1984, Smt. Ramawati v. Amrawati and Ors. , by which Smt. Ramawati claims herself to be the owner and landlord and the petitioners as tenants. The suit was filed with the allegation that property in dispute was owned by Sri Jagdish Kumar and upon his death it was inherited by his widow Smt. Surendra Bala and his mother, Smt. Genda Kunwar. Earlier Smt. Surendra Bala had filed a suit against Smt. Genda Kunwar for her eviction and for declaration, which was registered as Suit No. 17 of 1944. The said suit was decided against Smt. Genda Kunwar, against which she filed a civil revision before the High Court, which was registered as Civil Revision No. 338 of 1945. A compromise was arrived at on 16. 12. 1947 and on its basis Smt. Genda Kunwar was given life interest in the property, detailed in Schedule b to the plaint in lieu of the maintenance and she was accordingly, put into possession of the said property. Upon enforcement of the hindu Succession Act, 1956, Smt. Genda Kunwar became full and absolute owner of the aforesaid property and also had a right to transfer the same. Smt. Genda Kunwar executed a Will in respect of the said property on 23. 2. 1967 in favour of her grand daughter Smt. Rajeshwari devi Tandon. Upon the death of Smt. Genda Kunwar on 15. 4. 1976, the Will became operative and Smt. Rajeshwari Devi Tandon became the owner and continued to remain to be so till her death on 17. 12. 1980. On that date Smt. Beena Bahal, only daughter and sole heir of Smt. Rajeshwari Devi Tandon inherited the property and she executed the Will deed dated 7. 7. 1983 in favour of the plaintiff Smt. Ramawati. 12. 1980. On that date Smt. Beena Bahal, only daughter and sole heir of Smt. Rajeshwari Devi Tandon inherited the property and she executed the Will deed dated 7. 7. 1983 in favour of the plaintiff Smt. Ramawati. It was further alleged in the plaint that the accommodations detailed in Schedules b and c at the end of the plaint were part and parcel of the property shown in Schedule a to the plaint. It was clarified that the properties of the schedules b and c were in tenancy of Sri Ram Kishore, husband of the defendant No. 1 Smt. Amrawati and father of the defendant Nos. 2 to 5, namely Sri Rajendra Kishore, Sri Ravindra kishore, Sri Dharmendar Kishore and Sri Arvind Kishore. On the death of Ram Kishore defendant Nos. 1 to 5 became tenants of the original owner Smt. Genda Kunwar, thereafter of smt. Rajeshwari Devi Tandon, then of Smt. Beena Banal and finally of the plaintiff Smt. Ramawati. The defendant had committed default in payment of rent from 7. 7. 1983 and therefore a notice requiring to pay the arrears as also terminating their tenancy and to vacate the premises was given on 20. 1. 1984. However as the defendant failed to pay arrears despite notice and had further denied the title of the plaintiff as landlord as such the suit was filed on these two grounds for recovery of rent and ejectment from the properties detailed in Schedule b at the foot of the plaint. In respect of properties mentioned in Schedules a and c since they were in occupation and possession of other parties separate suits were filed against them, being registered as Small causes Suit Nos. 130 of 1984 and 131 of 1984. ( 3 ) THE defendants contested the suit and filed their written statements alleging, inter alia, that smt. Surendra Bala, widow of Jagdish Kumar, was the owner and landlord of the properties in dispute. She had executed a registered Will deed in favour of Sri Vishnu Kumar s/o Lal Tara chand on 23. 12. 1963. The said Will was also registered on 14. 1. 1964. Upon the death of Smt. Surendra Bala, Sri Vishnu Kumar became the exclusive owner and landlord of the properties. Subsequently by a registered sale deed dated 22. 4. 1983. She had executed a registered Will deed in favour of Sri Vishnu Kumar s/o Lal Tara chand on 23. 12. 1963. The said Will was also registered on 14. 1. 1964. Upon the death of Smt. Surendra Bala, Sri Vishnu Kumar became the exclusive owner and landlord of the properties. Subsequently by a registered sale deed dated 22. 4. 1983. Sri Vishnu Kumar transferred his right as follows : half share in favour of Smt. Kusum, w/o Sri Rajendra Kishore and Smt, Jaymata w/o sri Ravindra Kishore. The remaining half share was transferred in favour of Smt. Amrawati, widow of late Ram Kishore, Sri Dharmendra Kishore and Sri Arvind Kishore, sons of late Ram kishore and Smt. Ansuiya w/o Sri Dharmendra Kishore. In the circumstances it was contended by the defendants in the written statement that the plaintiff was not the owner and landlord of the properties in dispute and therefore could not maintain the suit. It was also denied in the written statement that Smt. Genda Kunwar never executed any Will in favour of Smt. Rajeshwari Devi tandon on 23. 2. 1967 and therefore, Smt. Rajeshwari Devi Tandon never became owner and landlord of the properties in dispute and subsequently Smt. Beena Bahal (daughter of Smt. Rajeshwari Devi Tandon) also had no right to execute the sale deed in favour of the plaintiff. ( 4 ) BEFORE the trial court both the parties led the evidence. The plaintiff filed a copy of the compromise dated 16. 12. 1947, which was arrived at between the parties in Civil Revision No, 338 of 1945. However, neither the pleadings of Suit No. 17 of 1944 nor the order sheet of Civil revision No. 338 of 1945 etc. could be filed before the trial court even though the pleading to the same were made in the plaint. The trial court after hearing the parties and considering the materials on records came to the conclusion that Smt. Genda Kunwar never became the absolute owner and had no right to execute the Will and subsequently the rights alleged to have accrued pursuant to the sale deed and the subsequent sale deed by Smt. Beena Bahal could not make the plaintiff owner and landlord of the properties in dispute. The trial court was of the view that it was always Sri Vishnu Kurnar on the basis of Will of Smt. Surendra Bala who became the owner and landlord and therefore there existed no relationship of landlord and tenant between the parties. On these findings of fact the trial court vide judgment dated 8. 2. 1985 dismissed the suit. Aggrieved by the same the plaintiff filed a revision under Section 25 of the Provincial Small causes Courts Act, 1887 (hereinafter referred to the Act) before the District Judge, Moradabad, which was registered as Revision No. 92 of 1985. During pendency of the said revision the plaintiffs-revisionist filed an application under Section 151, C. P. C. read with Order XLI, Rule 27, C. P. C, for admitting additional evidence on record for correct and proper adjudication of the rights of the parties. This application was supported by an affidavit. The five papers sought to be placed on the record included : (1) Plaint of Original Suit No. 17 of 1944, Smt. Surendra Bala v. Smt. Genda Kunwar, (2) Written statement filed in O. S. 17 of 1944, Smt. Genda Kunwar, (3) Judgment of Civil Judge, Moradabad in Original Suit No. 17 of 1944, (4) Order sheet in Original Suit No. 234 of 1975, Smt. Rameshwari Devi v. Sri Vishnu Kumar, (5) Order sheet in Original Suit No. 234 of 1975, Smt. Rameshwari Devi v. Sri Vishnu Kumar. ( 5 ) IT was explained in the affidavit that despite best efforts the plaintiff could not get the copy of these papers during pendency of the suit as they were not available in the record room being very old and that the plaintiff had exercised due diligence and had made full efforts to obtain the copy of these documents but had failed even though these documents find mention in the plaint. It was stated that with great difficulty these papers have been obtained and therefore they may be taken on record as they would be necessary for deciding the controversy in the suit. ( 6 ) AN objection was filed by the defendants on 17. 1. 1989 which was only formal to the effect that firstly, no additional evidence could be taken in revision and secondly, that no explanation has been tendered with regard to non-availability of the record. The revisional court vide order dated 7. 2. ( 6 ) AN objection was filed by the defendants on 17. 1. 1989 which was only formal to the effect that firstly, no additional evidence could be taken in revision and secondly, that no explanation has been tendered with regard to non-availability of the record. The revisional court vide order dated 7. 2. 1990 has allowed the application for admitting additional evidence holding that they would be necessary for arriving at a correct decision in the case. Aggrieved by the said order the present writ petition has been filed. ( 7 ) I have heard Sri Kshitij Shailendra, learned Counsel for the petitioners and Sri Ashok Nath tripathi, learned Counsel for the respondents. ( 8 ) THE sole question which arises for determination in the petition is as to whether the additional evidence, can be admitted in a revision under Section 25 of the Act and if such evidence can be admitted then under what circumstances its allowance would frustrate the very purpose of summary disposal of the cases under the provisions of the Act. ( 9 ) FROM a perusal of the record it is clear that the pleading relating to the Original Suit No. 17 of 1944, Smt. Surendra Bala and Smt. Genda Kunwar, filing of Revision No. 338 of 1945 before the High Court and the compromise arrived at between the parties in this civil revision are not disputed. Plaint clearly mentioned these facts. It is also clear from the pleading that both the parties are claiming title through the heirs of Sri Jagdish Kumar. The two heirs who succeeded sri Jagdish Kumar were his mother Smt. Genda Kunwar and his widow Smt. Surendra Bala. Plaintiff Smt. Ramawati claims her title coming down from Smt. Genda Kunwar whereas defendants Smt. Amrawati and her son claim title coming down from Smt. Surendra Bala. In the suit for declaration between Smt. Surendra Bala and Smt. Genda Kunwar, their rights stood determined under the compromise dated 16. 12. 1947. It is not in dispute that the full compromise is not available and has been destroyed. In the circumstances the pleadings of the Suit No. 17 of 1944, i. e. , plaint and written statement thereof would be relevant to consider the circumstances under which the compromise was arrived at and also to some extent the nature of the compromise which was arrived at between the two ladies. In the circumstances the pleadings of the Suit No. 17 of 1944, i. e. , plaint and written statement thereof would be relevant to consider the circumstances under which the compromise was arrived at and also to some extent the nature of the compromise which was arrived at between the two ladies. ( 10 ) IN my considered view the pleading of the Original Suit No. 17 of 1944 would be relevant as also necessary for arriving at a correct and proper conclusion with regard to the rights of the parties in the present proceeding. ( 11 ) LEARNED Counsel for the petitioners has contended that applicability of Order XLI, Rule 27 of the C. P. C. is specifically barred in view of the second Order L of C. P. C. and Section 17 of the act. These two provisions provide the details of the provision of the C. P. C. which can be applied in proceeding under 1887 Act, in Order L of the C. P. C. , Order XLI, Rule 27 has not been included rather Order XLI to Order XLV have been specifically excluded from being extended to the Courts constituted under the Act. ( 12 ) THE contention of Sri Kshitij Shailedra, learned Counsel for the petitioner, therefore, is that even if these papers sought to be filed were necessary and proper for correct adjudication of the rights, since Order XLI, Rule 27, C. P. C. has been excluded from being applied to the proceedings under the Act, these documents could not have been admitted in revision. In support of his contention reliance has been placed on the following judgment. (1) Smt. Kamini Khare v. Ram Naresh Pandey and Anr. , 1979 0 ALLLJ 1263 ; (2) Babu Ram v. Additional District Judge, Dehradun and Anr. , 1983 ARC 15 ; (3) Kailash Chandra Jain v. Jagdish Chandra Nagpal and Anr. , 1998 (2) AWC 847 : 1997 ARC 540 ; (4) State of Andhra Pradesh v. P. V. Hanumanta Rao (dead), JT 2003 (II) SC 438. , 1979 0 ALLLJ 1263 ; (2) Babu Ram v. Additional District Judge, Dehradun and Anr. , 1983 ARC 15 ; (3) Kailash Chandra Jain v. Jagdish Chandra Nagpal and Anr. , 1998 (2) AWC 847 : 1997 ARC 540 ; (4) State of Andhra Pradesh v. P. V. Hanumanta Rao (dead), JT 2003 (II) SC 438. ( 13 ) ON the other hand, Sri Ashok Nath Tripathi, learned Counsel for the respondents has contended that in order to meet the ends of justice and for arriving at a correct decision, if the court comes to the conclusion that certain papers need to be admitted it can always exercise power under its inherent jurisdiction available under Section 151, C. P. C. In the present case, the court below having recorded the findings that admitting of the evidence would help in correct and proper adjudication of the rights, it was fully justified in passing the order admitting the evidence and such order cannot be termed to be suffering from any error of law warranting interference by this Court in its extraordinary jurisdiction. ( 14 ) SRI Tripathi has also relied upon the following judgments in support of his contentions : (1) Pabbojan Tea Co. Ltd. etc. v. Deputy Commissioner, Lakhimpur and Ors. , AIR1968 SC 271 , [1968 (16 )FLR1 ], (1967 )II LLJ872 SC , [1968 ]1 scr260 ; (2) Smt. Gayatri Devi and Ors. v. Additional District Judge/special Judge (E. G. Act) Etawah and anr. 1992 AWC 273 ; (3) Badami Devi (Smt.) and Anr. v. Ambuja Raghav and Anr. , (2001 )9 scc245. ( 15 ) ALL the judgments relied upon by both sides ultimately rest upon the law laid down by the division Bench of this Court in the case of Babu Ram (supra ). In the said cases this Court, after holding that even though an order under Order XLI, Rule 27, C. P. C. cannot be pressed into service for admitting the additional evidence in revision under Section 25 of the Act, but at the same time the Division Bench held that the Court is constituted for the purpose of doing justice according to law and must therefore be deemed to possess as a necessary corollary and as inherent in its very constitution such powers as may be necessary to do justice and undo wrong in the course of the administration of the justice. The Division Bench further goes on to say that inherent power of a Court to do justice in fact flows from the well recognized principle of equity, justice and good conscience which equally applies to Courts deciding a suit under the Small causes Courts Act. The Division Bench while considering the provision contained in Order L, rule 1 (B) held as follows : "after a revision of the various provision of the Provincial Small Causes Courts Act and the code of Civil Procedure, we find that there is no prohibition contained in either of the two enactments expressed or impliedly providing for the bar of admitting additional evidence. What order 1, Rule 1 (b) did by excluding Order XLI was only that this provision will not apply to revisions. But, the fact that Order XLI, Rule 27 has been excluded does not lead to the conclusion that the Court cannot in exercise of its inherent power admit, additional evidence when the ends of the justice requires the same to be done. Thus, there is no doubt that the Court of Small Causes can in exercise of its inherent power admit additional evidence. However, when that power could be exercised and in what manner, that is a different question and that should not be mixed up with the jurisdiction of the Court to admit additional evidence. " ( 16 ) IN view of the above clear and unambiguous law laid down by Division Bench of this Court in the case of Babu Ram (supra), which has also been followed and concurred with in the subsequent judgment in the case of Gayatri Devi (supra) there cannot be any doubt that the revisional court exercising power under Section 25 of the Act can admit additional evidence. In the case of Mohair (supra), relied upon by the petitioners also this Court has laid down that there can be a situation where the revisional court exercising power under Section 25 of the Act may admit the additional evidence. Further in the case of Kailash Chandra Jain (supra) also the court has held that in the revisional jurisdiction under Section 25 of the Act the power to admit additional evidence is inherent and that jurisdiction is always available. Further in the case of Kailash Chandra Jain (supra) also the court has held that in the revisional jurisdiction under Section 25 of the Act the power to admit additional evidence is inherent and that jurisdiction is always available. The case of State of andhra Pradesh v. P. V. Hanumanta Rao (supra) also is of no help to the petitioner as it relates to exercise of jurisdiction or appreciation of the evidence by the High Court under Articles 226 and 227 of the Constitution of India. ( 17 ) IN the present case, I have already considered and recorded that the documents sought to be admitted were relevant and necessary for meeting out justice between the parties and also for the court to arrive at a correct and proper decision inter se between the parties, therefore, the revisional court has correctly exercised its jurisdiction in admitting the additional evidence. ( 18 ) IN view of what has been discussed above the revisional court has not committed any error much less error of law so as to warrant interference by this Court under its equitable and extraordinary jurisdiction under Article 226 of the Constitution of India. ( 19 ) ACCORDINGLY, both the writ petitions fail and are dismissed. However, there shall be no order as/to costs. . .