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2012 DIGILAW 2869 (ALL)

Anil Kumar Shukla v. Hari Shankar

2012-12-11

SIBGHAT ULLAH KHAN

body2012
Sibghat Ullah Khan, J.— Heard learned counsel for the petitioner. 2. Landlord-respondent filed release application under Section 21 (1) of U.P. Urban Building (Regulation of Letting Rent and Eviction) Act 1972 (U.P. Act No. 13 of 1972) against the tenant-petitioner for his eviction from the tenanted shop in dispute on the ground that landlord bonafidely required the same. The release application was registered as Rent Case No. 05 of 2010 and was allowed on 29.07.2011 by Prescribed Authority/ IInd Addl. J.S.C.C., Kanpur Nagar. Against the said order petitioner has filed Rent Appeal No. 114of 2011, which is pending before A.D.J., Court No.20, Kanpur Nagar. In the appeal petitioner filed an application under Order 41 Rule 27 read with Section 151 C.P.C. and Section 34 of U.P. Act No. 13 of 1972 for adducing additional evidence, which was rejected by A.D.J., Court No.20, Kanpur Nagar on 08.11.2012. The said order has been challenged through this writ petition. 3. The ground taken in the applciation was that the documents sought to be adduced as aditional evidence were sought to be filed before the Prescribed Authority which wrongly refused to take them on record. In the impugned order lower Appellate Court has mentioned that the Prescribed Authority heard the arguments on five dates from 14.07,.2011 to 22.07.2011 and thereafter fixed 29.11.2011 for delivery of order, however, on 28.11.2011, one day before delivery of order application for additional evidence had been filed which could not be said to be proper filing of application. In this regard, the lower Appellate Court was quite correct. After the judgment, is reserved no application can be entertained as held by Hon'ble Supreme Court in AIR 1964 SC 993 Arjun Singh Vs. Mohindra Kumar. However, the lower Appellate Court should have considered as to whether petitioner was entitled to file these documents as additional evidence before lower Appellate Court or not ? Accordingly, lower Appellate Court is directed to reconsider the application of the petitioner for adducing additional evidence. If the lower Appellate Court comes to the conclusion that petitioner had sufficient reason for not filing the requisite documents before Prescribed Authority before 14.07.2011, then the same may be permitted to be adduced as additional evidence. 4. Property in dispute is a shop situated in Kanpur Nagar, which is most expensive city of U.P. Learned counsel for the petitioner states that rent is Rs.65/- per month. 4. Property in dispute is a shop situated in Kanpur Nagar, which is most expensive city of U.P. Learned counsel for the petitioner states that rent is Rs.65/- per month. This is utterly shocking. The other thing which is equally shocking is that inspite of repeated orders of this Court, the learned District Judge and learned A.D.Js. are granting unconditional stay orders to the tenants. The same thing has been done in the instant case. 5. Accordingly, stay order granted by the lower Appellate Court is modified and it is directed that until decision of appeal, tenant -petitioner, who is appellant before lower Appellate Court shall not be evicted pursuant to the release order passed by Prescribed Authority provided that with effect from December 2012 onwards he pays rent to the landlord-respondent at the rate of Rs.2,000/- per month by 7th of each succeeding month by depositing the same before the lower Appellate Court for immediate payment to the landlord. In case of two defaults, the stay order shall automatically stand vacated. 6. The writ petition is accordingly disposed of. 7. This order has been passed without issuing notice or hearing landlord-respondent in order to save time. However, if landlord- respondent feels aggrieved by this order, he is at complete liberty to file application for its recall. 8. Office is directed to send copy of this order to District Judge Kanpur Nagar as well as Additional District Judge, Court No.20, Kanpur Nagar. _____________