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2005 DIGILAW 996 (AP)

Immadisetti Mallikarjuna Rao v. Gostu Pramelamma

2005-10-25

C.Y.SOMAYAJULU

body2005
C. Y. SOMAYAJULU, J. ( 1 ) AGAINST the order of dismissal of the petition for eviction of the revision petitioner from the building belonging to the respondent, filed under the provisions of the A. P. Buildings (lease, rent and eviction) Control Act 1960 (the Act) respondent filed a petition to receive certain documents as additional evidence under order 41 Rule 27 C. P. C. , which was allowed by the Appellate authority by the order under revision. Hence, this revision petition by the tenant. ( 2 ) RELYING on Eureka Estates Private Limited V. A. P. State consumer Disputes Redressal Commission, Hyderabad and others, 2004 (6) ALT 46 (DB), the contention of counsel for the petitioners is that the provisions of C. P. C. do not apply to the proceedings under the Act, and even assuming that an application under Order 41 Rule 27 c. P. C. can be entertained by him, the appellate authority was in error in straight away allowing the petition for receiving additional evidence even without going into the question whether there are grounds to receive additional evidence as contemplated by rule 27 of Order 41 C. P. C. or not. ( 3 ) THE contention of the learned counsel for the first respondent is that appellate authority under the Act can admit additional evidence and since cogent reasons for allowing the application for additional evidence are given, the order under revision needs no interference. ( 4 ) QUESTION whether C. P. C. applies to the proceedings under the Act or not is not res Integra, because a Division Bench of this court in Soni @ Bhuthulasi and others V. Kunda Nageswara Rao and another, 1991 (3) ALT 200 referring to the observations in Pallapothu narasimha Rao and another V. Kidanbi Radhakrishnamacharyulu, AIR 1978 AP 319 (Full Bench) held that C. P. C. applies to the proceedings under the Act, in respect of instances where no adequate provision is made in the Act or the Rules made thereunder and if the provisions sought to be applied are not inconsistent with any express provisions of the Act and or the scheme and purpose of the Act. Similar view was taken in sachideva Simhachalam and another V. Kalla Naidu and others, 2000 (3) ALT 325. Similar view was taken in sachideva Simhachalam and another V. Kalla Naidu and others, 2000 (3) ALT 325. ( 5 ) IN Eureka Estates Private Ltd. , case (1 supra), relied on by the learned counsel for the revision petitioner, the Division Bench was considering the question whether the Fora constituted under the Consumer Protection Act, 1986 can, by invoking the provisions of C. P. C. review the order passed by them earlier and held that since there is no specific provision in the Consumer Protection Act 1986 or in the Rules framed thereunder, empowering Fora to exercise the power of review, they, by invoking the provisions of c. P. C. , cannot review their earlier orders. This decision is of no help to decide this revision petition, because this revision petition does not relate to review of an order passed by the authorities under the Act, and since no authority exercising judicial or quasi judicial functions under a statute can review his order unless the statute confers a power of review on that authority, and since the issue in this case relates to admission of additional evidence, which is in the realm of procedural law. It is well known that rules of procedure are handmaids of justice and so any procedure adopted by the authorities under the Act, when the same is not inconsistent with the provisions of the Act or the Rules made thereunder and if it is consonance with the provisions of C. P. C. , needs no interference, because the authorities under the Act can take recourse to C. P. C. by virtue of Section 141 C. P. C. ( 6 ) IT is also necessary to keep in view that Section 20 (3) of the act, specifically empowers the appellate authority to make further enquiry as it thinks fit either personally or through the Controller, if necessary, to decide the appeal. In fact the Apex Court in yudhishter V. Ashok kumar, AIR 1987 Supreme Court 558 while considering their provision relating to appeals in the Haryana Urban (Control of Rent and Eviction) Act (Act 11 of 1973), which is in pari materia with Section 20 (3) of the act, held that the appellate authority under the Haryana Act has the power to admit additional evidence in an appeal. Therefore, the power of the appellate authority under the Act to admit additional evidence in an appeal cannot be disputed as he is vested with such a power by Section 20 (3) of the Act. ( 7 ) I find force in the contention of the learned counsel for the revision petitioner that the appellate authority was in error in allowing the petition to receive additional evidence without going into the question whether the circumstances of the case warrant admission of additional evidence in the appeal. It is well known that an application under Order 41 Rule 27 C. P. C. has to be heard along with appeal, and if during the course of hearing of the appeal, the appellate authority were to feel that it is necessary for him to make a further enquiry or if he feels that circumstances warrant admission of additional evidence as in Rule 27 of Order 41 c. P. C. only can receive additional evidence in the appeal, as receipt of additional evidence in an appeal is not as a matter of right for any party. ( 8 ) IN this case appellate authority committed an error in receiving the documents subject to proof and relevancy, as used to be done by the trial courts under rule 2 of Order 13 C. P. C. (since repealed ). If and when the appellate authority feels that there is justification for receipt of additional evidence in the appeal it has to follow the procedure prescribed in Order 41 C. P. C. for receiving the same and no question of receiving additional documents subject to proof and relevancy arises in an appeal, as used to be done in the trial courts. ( 9 ) FOR the above reasons, the order impugned is set aside and i. A. No. 260 of 2003 is remitted to the appellate authority with a direction to hear C. M. A. No. 2 of 2002 and I. A. No. 260 of 2003 together and pass orders in I. A. No. 260 of 2003 while hearing of the appeal, keeping in view the provisions of Section 20 (3) of the Act and Rule 27 of Order 41 C. P. C. The civil revision petition is disposed of accordingly. No order as to costs.