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2011 DIGILAW 2500 (RAJ)

Gopal Krishan v. Braham Prakash

2011-11-18

GOPAL KRISHAN VYAS

body2011
JUDGMENT 1. - In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing order impugned dated 14.10.2011 (Annex.-6) passed in Civil Appeal Decree No.02/2010 by the Addl. District Judge, Sujangarh and further submits that the appellate Court may be directed to decide the application of the petitioner dated 20.09.2011 filed under Order 41, Rule 27 , C.P.C. in favour of the petitioner-appellant and documents produced along with the said application may be taken on record in accordance with law. 2. As per facts of the case, in the suit filed against the petitioner tenant for eviction from the shop and recovery of arrears of rent under the provisions of the Transfer of Property Act, a decree was passed against the petitioner-defendant on 07.10.2010 by the Civil Judge (Jr. Dn.), Sujangarh. The petitioner-defendant preferred civil appeal against the said judgment and decree in the Court of Addl. District Judge, Sujangarh and, during pendency of the appeal, the petitioner filed an application under Order 41, Rule 27 , C.P.C. and filed as many as 17 original documents in the Court with the request that since the disputed shop was taken on lease for business of manufacturing "Gopal mark bidi" and the said business is carried therein; but, due to lack of legal advice the appellant-defendant could not produce relevant documents in support of his defence. As per the petitioner, those documents are relevant and necessary to decide the real question in controversy in between the parties. 3. The appellate Court rejected the application even without filing any written reply to the application vide order dated 14.10.2011 which is under challenge in this writ petition. 4. Learned counsel for the petitioner submits that the order impugned is illegal because it is proved in the trial that the shop in dispute was taken on lease for Gopal Mark Bidi, therefore, notice sent under Section 106 of the Transfer of Property Act was illegal. 4. Learned counsel for the petitioner submits that the order impugned is illegal because it is proved in the trial that the shop in dispute was taken on lease for Gopal Mark Bidi, therefore, notice sent under Section 106 of the Transfer of Property Act was illegal. It is also pointed out that as per Section 106 of the Transfer of Property Act, the term of tenancy and term of notice to determine the lease depend upon the nature of lease and if the lease is for manufacturing purposes it cannot be determined by 15 days' notice; but, this aspect of the matter has not been considered by the appellate Court while rejecting the application filed by the petitioner under Order 41, Rule 27 , C.P.C. 5. It is also submitted that the first appellate Court erroneously held in the order that there is no dispute in between the parties with regard to purpose for which the shop was let out, therefore, it is obvious from perusal of the order that the appellate Court has failed to consider the legality of the notice sent under Section 106 of the Transfer of Property Act, for which, the documents filed by the petitioner-appellant were necessary. 6. In support of his contention, learned counsel for the petitioner invited my attention towards judgments reported in 2002 WLC (SC) Civil 726, Wadi v. Amilal & Others ; 2010 DNJ (SC) 167, H.P. Vedavyasachar v. Shivashankara & Another ; and judgment of this Court reported in 2010 (1) DNJ (Raj.) 201, Prem Singh v. Rama Kishan , and submits that for any lapse on the part of the Advocate who appeared in the trial the litigant should not suffer and an application filed under Order 41, Rule 27 , C.P.C. for producing additional evidence is required to be considered in right perspective for the purpose of adjudicating the actual controversy in question, therefore, the order impugned may be quashed and application filed under Order 41, Rule 27 may be allowed and documents filed along with the said application may be ordered to be taken on record by the appellate Court for proper adjudication. 7. 7. Per contra, learned counsel appearing on behalf of the respondent submits that the contention of the appellant-petitioner for lapse on the part of his counsel cannot be accepted because in the written-statement although a plea was taken in para 11 that the business which is running under the name of Gopal Mark Bidi is only means for survival of the family and if it is so, then, the objection with regard to the validity of notice sent under Section 106, Transfer of Property Act was required to be raised by the petitioner; but, it was not raised before the trial Court, therefore, at this stage, in appeal, no such document can be taken on record for the purpose of deciding issue of validity of notice sent by the respondent-plaintiff under Section 106, Transfer of Property Act. 8. Learned counsel for the respondent-plaintiff submits that the purpose of filing these documents is only to delay the matter and sent back the matter to the trial Court again for deciding the suit afresh while raising ground before the appellate Court, therefore, at this stage, the appellate Court has rightly observed in the order while rejecting the application that purpose of petitioner-appellant is not bona fide and it is only to delay the adjudication, therefore, no case is made out for interference under Article 227 of the Constitution of India. 9. After hearing both the parties, I have perused the judgment cited by learned counsel for the petitioner. 10. It is true that in the written-statement, it was specifically pleaded by the petitioner-defendant in para 3 that notice sent under Section 106 of the Transfer of Property Act was not received and on the basis of the said notice the plaintiff is not entitled to terminate the tenancy because no such agreement was made in between the parties. 11. It is true that in the written-statement, it was specifically pleaded by the petitioner-defendant in para 3 that notice sent under Section 106 of the Transfer of Property Act was not received and on the basis of the said notice the plaintiff is not entitled to terminate the tenancy because no such agreement was made in between the parties. 11. In para 11 of the written-statement, it is pleaded that at present the family of defendant is pursuing business under the nomenclature of "Gopal Mark Bidi" and it is the only source of survival of the family; meaning thereby, inspite of these facts narrated in the written-statement no specific ground was raised that notice under Section 106 of the Transfer of Property Act is illegal as per the language of Section 106, Transfer of Property Act; and, now, at the appellate stage, the petitioner-appellant has tried to take this plea while submitting documents along with the application filed under Order 41, Rule 27 , C.P.C. In my opinion, obviously once the defendant has left the boat for not raising ground even if the pleadings are in the written-statement, then, at this stage, it cannot be said that any error is committed by the appellate Court below while rejecting the application filed under Order 41, Rule 27 , C.P.C. 12. In the judgments cited by learned counsel for the petitioner-appellant the point in controversy is based upon entirely different facts. There is no quarrel with regard to the proposition laid down in the case of Wadi v. Amilal (supra) , but, at the time of of passing any order for taking additional facts on record other facts are also required to be taken into consideration, therefore, the cited judgment is not applicable to the facts of the present case. 13. With regard to the judgment of the Supreme Court reported in 2010 DNJ (SC) 71, Shyam Gopal Bindal & Others v. Land Acquisition Officer & Another , it is worthwhile to observe that in the said case the Hon'ble Supreme Court allowed the application filed under Order 41, Rule 27 , C.P.C. for the reason that the plaintiff died during the pendency of the suit and legal heirs of the plaintiff were not aware of the orders produced in the suit, therefore, the said judgment is also not applicable to the present case. 14. 14. In the judgment reported in 2010 DNJ (SC) 167, the Hon'ble Supreme Court passed an order to allow the application filed under Order 41, Rule 27 , C.P.C. for the reason that the respondent had not been given opportunity to adduce the said evidence by the trial Court, therefore, this judgment is also not applicable upon the facts of the present case. 15. In the judgment of the Rajasthan High Court cited by learned counsel for the petitioner in the case of Prem Singh v. Rama Kishan , this Court held that the Court should take lenient view that ample opportunity is required to be given to the litigant to lead evidence. In the present case, the petitioner himself pleaded before the trial Court that his family is pursuing business in the suit premises but no objection was raised with regard to validity of the notice sent under Section 106, Transfer of Property Act by the plaintiff-respondent, therefore, the said judgment is also not applicable upon the facts of the present case. 16. On the basis of the above discussion, it can be said that at the time of final arguments in the appeal the petitioner can raise all his ground but he cannot be permitted to place the documentary evidence on record at this stage, for which, obviously the purpose of the petitioner is to delay the final adjudication. 17. In this view of the matter, I see no reason to interfere in the order impugned while exercising power under Article 227 of the Constitution of India. 18. Accordingly, this writ petition is dismissed.Writ Petition Dismissed. *******