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2012 DIGILAW 150 (AP)

Agarwal Brothers, rep. by its Proprietor Sri Jitender Agarwal v. Savithri Bai

2012-02-09

C.V.NAGARJUNA REDDY

body2012
Judgment : Since the parties and subject matter are common, these two Civil Revision Petitions are heard and disposed of together. 2. The petitioner in both these Civil Revision Petitions is respondent in Rent Appeal No.213 of 2010, on the file of the learned Additional Chief Judge, City Small Causes Courts, Hyderabad. 3. Originally, the respondent filed RC.No.193 of 2006 before the Additional Rent Controller, Secunderabad, seeking eviction of the petitioner on the ground of bona fide requirement under Section 10 (3) (a) (iii) (a) of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960, read with Section 10 (c) of the Amended Act 17 of 2005 (for short ‘the Act’) and that she is a senior citizen. The petitioner has denied the title of the respondent and consequently, pleaded that there is no jural relationship of tenant and landlord between him and the respondent. The learned Additional Rent Controller dismissed the said RC by upholding the objections of the petitioner. Feeling aggrieved by the said Order, the respondent filed RA.No.213 of 2010 in the Court of the learned Additional Chief Judge, City Small Causes Court at Hyderabad. Pending the appeal, the respondent filed IA.No.249 of 2010 under Section 20 (3) of the Act read with Order XLI Rule 27 of the Code of Civil Procedure Code, 1908 (for short ‘the CPC’) for receiving certain documents by way of additional evidence. The learned Additional Chief Judge has allowed not only the said application but also the appeal filed by the respondent by passing separate Orders, dated 13-12-2011. Feeling aggrieved by both those Orders, the petitioner filed these two Civil Revision Petitions. 4. At the outset, it needs to be observed that the procedure followed by the appellate Court is not only not in consonance with the statutory provisions, but also with the established practice. Undoubtedly, the appellate Court has power to receive additional evidence subject to the applicant satisfying the legal parameters as envisaged in Order XLI Rule 27 (1) of the CPC. Since the case related to the eviction under the provisions of the Act, it is also governed by the provisions of Section 20 (3) read with Rule 11 (2) of the A.P. Buildings (Lease, Rent & Eviction) Control Rules, 1960 (for short ‘the Rules’). Since the case related to the eviction under the provisions of the Act, it is also governed by the provisions of Section 20 (3) read with Rule 11 (2) of the A.P. Buildings (Lease, Rent & Eviction) Control Rules, 1960 (for short ‘the Rules’). Even though Mr.Pramod Kumar Kedia, learned Counsel for the petitioner, has raised a feeble objection to the appellate Court receiving the subject documents as additional evidence, having regard to the reasons assigned by the appellate Court therefor, I am not inclined to interfere with the order of the appellate Court passed in IA.No.249 of 2010. But, as noted above, the lower appellate Court has not followed the proper procedure before considering the additional evidence and granting relief in favour of the respondent. 5. Under Section 20 (3) of the Act, the appellate Court shall send for records of the case from the Rent Controller and give the parties an opportunity of being heard and, if necessary, after making such further enquiry as he thinks fit, either personally or through the Rent Controller and decide the appeal. Rule 11 (2) of the Rules envisages that if the appellate Court decides to make further enquiry, it may take additional evidence or require such evidence to be taken by the Rent Controller. A similar provision is incorporated by way of Rule 28 of Order XLI of the CPC under which whenever additional evidence is allowed to be produced, the appellate Court may either take such evidence or direct the Court, from whose decree the appeal is preferred or any other subordinate Court, to take such evidence and to send it, when taken, to the appellate Court. 6. These provisions, thus, provide for appropriate enquiry to be undertaken while receiving additional evidence, which necessarily means that the party, against whom the additional evidence is being admitted, shall be given an opportunity to meet the additional evidence whether be it documentary or oral. 6. These provisions, thus, provide for appropriate enquiry to be undertaken while receiving additional evidence, which necessarily means that the party, against whom the additional evidence is being admitted, shall be given an opportunity to meet the additional evidence whether be it documentary or oral. The settled practice by the judicial Fora is that whenever such additional evidence is taken on record, either the appellate Court will undertake the exercise of recording the evidence during which the documents, which are sought to be filed by way of additional evidence, will be marked and the other side will be given an opportunity of cross-examining the witnesses, through whom such documents are marked, or it will direct the primary forum to record the evidence by following the above-mentioned procedure and forward the same to it. This view of mine stands fortified by one of the recent judgments of the Supreme Court in Shalimar Chemical Works Limited vs. Surendra Oil and Dal Mills (Refineries) and others ((2010) 8 Supreme Court Cases 423)wherein it has set aside the order of the learned single Judge of a High Court, who has taken original certificates of registration of trade mark as additional evidence and simultaneously allowed the appeal without giving the respondents/defendants an opportunity to lead evidence in rebuttal of the documents taken in as additional evidence. 7. In the light of the above legal position, the order of the appellate Court in RA.No.21l3 of 2010 cannot be sustained as the petitioner was not given an opportunity of leading rebuttal evidence with reference to the documents filed by the respondent and admitted as additional evidence at the stage of appeal. On this short ground, Order, dated 13-12-2011, in RA.No.213 of 2010 is set aside and the case is remanded to the lower appellate Court for fresh consideration. The lower appellate Court is directed to record further evidence either by itself or by directing the Rent Controller, to record the evidence and forward the same to it with reference to the additional evidence produced by the respondents, and dispose of the appeal afresh within three months from the date of receipt of a copy of this order. 8. The lower appellate Court shall keep open mind while disposing of the appeal without being influenced by any of the findings rendered by it in its earlier Order, dated 13-12-2011. 9. 8. The lower appellate Court shall keep open mind while disposing of the appeal without being influenced by any of the findings rendered by it in its earlier Order, dated 13-12-2011. 9. As regards Order, dated 13-12-2011, in IA.No.249 of 2010, for the reasons mentioned herein before, I am not inclined to interfere with the same. 10. In the result, CRP.No.289 of 2012 is allowed and CRP.No.293 of 2012 is dismissed.