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2009 DIGILAW 3733 (ALL)

PRADEEP KUMAR v. MOHD. SAIFUL EZAZ ALAM KHAN

2009-12-14

SHISHIR KUMAR

body2009
JUDGMENT Honble Shishir Kumar, J.—This writ petition has been filed for quashing the order dated 14.1.2009 passed by Addl. District Judge, Budaun in Rent Appeal No. 12 of 2008. 2. It appears that against the petitioner who is a tenant, a release application filed by the respondent was allowed by the Prescribed Authority vide its order dated 2.1.2008. The petitioner filed an appeal under Section 22 of Act No. XIII of 1972. During pendency of the appeal, the petitioner filed one application for additional evidence which was numbered as 28 Ga and one application as 53 Ga for adducing additional evidence as well as an application for issuance of commission in order to ascertain the dimensions of the rooms which exists on the upper storey of the shop in which the petitioner is a tenant and also for inspection of the shop which belongs to respondents No. 1 and 2. These applications filed by the petitioner after due consideration, the appellate Court has passed an order that all the applications will be considered at the time of hearing in view of the judgment of the Apex Court as well as this Court. This order was passed on 14.1.2009. The petitioner aggrieved by the aforesaid order filed this writ petition and obtained an order staying further proceeding. 3. Sri Siddharth Verma, learned counsel appearing for the petitioner submitted that during the pendency of the appeal, some additional facts came to the knowledge, therefore, these applications have been filed. In view of Section 38 of Act No. XIII of 1972 it will have over-riding effect upon the provisions of Transfer of Property Act and Civil Procedure Code. In view of the provisions of Section 38, no provision of Civil Procedure Code was applicable unless and until it was applied by Act No. XIII of 1972. Order XLI Rule 27, C.P.C. cannot be made applicable in such proceeding. Section 38 as well as Order XLI Rule 27 Code of Civil Procedure are being reproduced below : “38. Act to override T.P. Act and Civil Procedure Code.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of property Act, 1882(Act No. IV of 882) or in the Code of Civil Procedure, 1908.” “Order 41 Rule 27. Act to override T.P. Act and Civil Procedure Code.—The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of property Act, 1882(Act No. IV of 882) or in the Code of Civil Procedure, 1908.” “Order 41 Rule 27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercising of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The Appellate Court may allow such evidence or document to be produced, or witness to be examined 5. Further submission has been made that in view of the various decisions like 2008 JT (7) SC 136, M/s Eastern Equipment & Sales Ltd. v. ING. Yash Kumar Khanna; 1998 (1) ARC 589, Dr. K.C. Tandon v. IXth Additional District Judge, Kanpur Nagar and others, the principles of Order 41 Rule 27, C.P.C. for adducing the evidence are not a correct view in view of the provisions of Sections 24 and 38 of Act No. XIII of 1972. In view of Section 34 of the Act it is apparent that appellate authority is also empowered to receive evidence on affidavits and get the building inspected by issuance of commission. The appellate authority is also empowered to receive the evidence on affidavit and to issue commission like as if it was trying the suit. In view of the aforesaid provisions it is thus clear that the appellate authority has got absolute power without any restriction to receive any evidence or to issue a commission. Section 34 of Act No. XIII of 1972 is being reproduced below : “34. In view of the aforesaid provisions it is thus clear that the appellate authority has got absolute power without any restriction to receive any evidence or to issue a commission. Section 34 of Act No. XIII of 1972 is being reproduced below : “34. Powers of various authorities and procedure to be followed by them.—(1) The District Magistrate, the Prescribed Authority or any (appellate or revising authority) shall for the purposes of holding any inquiry or hearing (any appeal or revision) under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1980 (Act No. V of 1908) when trying a suit in respect of the following matters, namely— (a) summoning and enforcing the attendance of any person and examining him on oath; (b) receiving evidence on affidavits; (c) inspecting a building or its locality, or issuing commissions for the examination of witnesses or documents or local investigation; (d) requiring the discovery and production of document; (e) awarding, subject to any rules made in that behalf, costs of special costs to any party or requiring security for costs from any party; (f) recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (g) any other matter which may be prescribed. ....................” 6. In view of Section 10 (2) of Act No. XIII of 1972, the appellate authority may confirm, vary or rescind the order or remand the case to the District Magistrate for reaching and also take any additional evidence pending decision as it thinks fit. The evidence is adduced in the trial Court for a suit under Orders13 and 18, C.P.C. In view of Section 34 of the Act there is absolutely no restriction for adducing any evidence or issuance of any commission. If subsequent event has come to the knowledge, it can be taken into account in view of the judgment reported in AIR 1985 SC 207 , 1989 (7) LCD 498, 1991 AWC 332 and 2004 (8) SCC 76 . It has been held by the various decisions of this Court that commission, on an application made by the person concerned, can be issued by the appellate Court. It has been held by the various decisions of this Court that commission, on an application made by the person concerned, can be issued by the appellate Court. The petitioner has placed reliance upon the judgments of this Court as well as of the Apex Court which are as follows : 1988 AWC 385, 1997(31) ALR 648, 2003 (1) ARC 418, 2008 (71) ALR 444 as well as the Apex Court judgment in Civil Appeal No. 5427 of 2008, Radhey Shyam Rastogi v. Ashish Kumar another. In view of the aforesaid fact, learned counsel for the petitioner submits that the application filed by the petitioner should have been allowed. 7. On the other hand, learned counsel appearing for the respondents submits that this writ petition is premature in view of the fact and the order passed by the Court below on the applications filed by the petitioner dated 14.1.2009. From the perusal of the aforesaid order, it appears that the applications filed by the petitioner for additional evidence as well as for issuance of commission has not been rejected but a specific finding has been recorded that in view of the Apex Court judgment, it will be considered at the time of hearing, meaning thereby if at the time of hearing, the Court comes to the conclusion that it is a case where the additional evidence is necessary and a commission to that effect for the purpose of verifying the property in question has to be verified, in that circumstance, the Court can pass the appropriate orders. But prima facie the Court was of opinion that it is not necessary. No orders have been passed, therefore, the writ petition is not maintainable. 8. I have considered the submissions made on behalf of the parties and have perused the record. As contended by the petitioner that in view of Section 38 of Act No. XIII of 1972, the Act will have over-riding effect upon the Transfer of Property Act and Civil Procedure Code. But from the perusal it is clear that it will have over-riding effect notwithstanding anything inconsistent therewith, meaning thereby if any provision is in inconsistent with Act No. XIII of 1972, then in that case the Rent Control Act will have over-riding effect. But from the perusal it is clear that it will have over-riding effect notwithstanding anything inconsistent therewith, meaning thereby if any provision is in inconsistent with Act No. XIII of 1972, then in that case the Rent Control Act will have over-riding effect. But the contention of the petitioner to this effect that Order 41 Rule 27 will have no effect in a proceeding under Act XIII of 1972 cannot be accepted in view of the settled principles of law as discussed in the order impugned. In 2008 (7) SC 136, M/s Eastern Equipment and Sales Ltd. v. Ing. Yash Kumar Khanna the Apex Court while considering the provisions under Order XLI, Rule 27, C.P.C. it has been held that in case some additional evidence is filed before the appellate Court, it has to be decided with the appeal. In 2000 (2) ARC 431, Punjab & Sindh Bank v. VII Additional District Judge, Bulandshahr, this Court has held that in appeal under Section 22 of Act No. XIII of 1972, the appellate Court has to follow the provisions of Order 41 Rule 27, C.P.C. In such view of the matter, the appellate Court has considered the submissions of the petitioner and has held that the application for additional evidence of the petitioner will be considered at the time of hearing of the appeal. The judgments cited by the learned counsel for the petitioner relate regarding that in case the application is rejected for additional evidence, in that circumstances, the Apex Court has held that it was not justified and the application ought to have been decided with the appeal. As regards the submission of the learned counsel for the petitioner regarding appointment of Commissioner to inspect the premises of the landlord, all the judgments cited by the learned counsel for the petitioner relate to when the application was filed at the initial stage. This is not the case of the petitioner that as regards the availability of the premises, if any fact subsequent to filing the application was not in his knowledge, it came after filing the appeal. 9. This is not the case of the petitioner that as regards the availability of the premises, if any fact subsequent to filing the application was not in his knowledge, it came after filing the appeal. 9. Further it is to be noted that apart from all the submissions made by the petitioner, this writ petition can be treated to be premature in view of the fact that applications of the petitioner for appointment of the commissioner as well as for the additional evidence is still pending for consideration and the appellate Court has passed an order that it will be considered at the time of hearing. Therefore, in my opinion, it can easily be inferred that the writ petition can be treated to be premature without any order impugned. 10. In view of the aforesaid fact the writ petition being devoid of merit is hereby dismissed. 11. No order is passed as to costs. 12. The appellate Court is directed to decide the appeal filed by the petitioner within a period of six months from the date of production of certified copy of this order before him. ————