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2013 DIGILAW 29 (UTT)

SH. DEEPAK OBEROI v. SH. VIRENDRA SEHGAL

2013-01-18

B.S.Verma

body2013
JUDGMENT Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the impugned order dated 01-8-2009 passed by the Additional District Judge/F.T.C.-V, Dehradun in Rent Control Appeal No. 144 of 2008, Sh. Vidrendra Sehgal Vs. Sh. Deepak Oberoi, whereby the learned appellate Court while deciding the application moved by the application moved by the appellant-tenant under Order 41, Rule 27 C.P.C. (paper no. 6-C) has been allowed on payment of Rs. 500/- as costs. 2. Brief facts of the case, necessary for the disposal of the present writ petition, are that the respondent-landlord moved a release application under Section 21(1)(a) of the U.P.Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (for short the Act) against the tenant for release of the shop in dispute on the ground of his bona fide need. 3. The release application was contested before the Prescribed Authority, who after perusing the evidence of the parties, did not find favour with the applicant-landlord and dismissed the release application by judgment and order dated 27-8-2008. Aggrieved, the landlord preferred an appeal under Section 22 of the Act before the District Judge, Dehradun, which was subsequently transferred to the court of the Additional District Judge/ F.T.C. V, Dehradun for disposal. 4. It appears that the appellant has moved an application under Order 41, Rule 27 C.P.C. for taking additional evidence on record. The petitionr has annexed the said application as Annexure-7 to the writ petition. In this application it has been alleged by the applicant-appellant that the learned lower Court in the impugned judgment has denied the need of the appellant because the appellant is having othr property bearing No. 547, Kaulagarh Road, Dehradun and a shop adjacent to the shop in question. It has been asserted by the appellant that his father had dissolved all his relations with appellant as the appellant had married against the wishes of his father. The appellant in order to prove that the said property belongs to his father has filed the present application to bring on record the sale deed of the property bear No. 547, Kaulagarh Road and the shop adjacent to the sjhop in question. The appellant in order to prove that the said property belongs to his father has filed the present application to bring on record the sale deed of the property bear No. 547, Kaulagarh Road and the shop adjacent to the sjhop in question. Since the bona fide need of the appellant was rejected on account of the ownership of the said property, the certified copies of the sale deed and photographs of the shop in question are relevant for the just decision of the appeal. 5. In the affidavit, the appellant has mentioned in paragraph no.4 that the certified copies of the documents were not available to him during the trial before the Prescribed Authority. 6. The respondent-tenant filed objection against the said application that the application has been moved at a belated stage and the applicant-appellant has not given any explanation for the delay and that the application is not legally maintainable. 7. The learned appellate after hearing both the parties has come to the conclusion that perusal of the documents intended to be filed as additional evidence is necessary for a just decision of the appeal, therefore, the learned appellate court has passed the impugned order, which gave rise to the present writ petition. 8. On behalf of the respondent, counter affidavit has been filed. In the counter affidavit, in paragraph 4(E) it has been specifically stated by the respondent that the Prescribed Authority had dismissed the release application mainly on the ground that the landlord failed to establish the fact that in the property bearing 547 Kaulagarh Road, Dehradun owned by his father, the appellant would not get his share therein. 9. In the rejoinder affidavit, the petitioner has stated that the landlord-respondent had concealed the fact that earlier his release application registered as P.A.Case No. 64 of 1999 was dismissed at the stage of writ petition by this Court. The petitioner has reiterated the same averments as has been made in the writ petition. 10. I have heard learned counsel for both the parties and perused the entire material placed before this Court including the counter affidavit and the rejoinder affidavit. 11. The short controversy to be resolved in the present writ petition is whether the learned appellate Court has rightly held in the facts and circumstances of the present case that the perusal of the proposed document necessary for a just decision of the appeal. 11. The short controversy to be resolved in the present writ petition is whether the learned appellate Court has rightly held in the facts and circumstances of the present case that the perusal of the proposed document necessary for a just decision of the appeal. 12. For a just decision of this writ petition, a reference to the Rule 27 of Order 41 of the C.P.C. is necessary: “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 exercise 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; (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 13. The learned counsel for the petitioner has submitted that the approach of the learned appellate Court was not justified in passing the impugned order inasmuch as under clause (b) of Rule 27(1) of Order 41 of the Code of C.P.C. a finding must have come of the learned appellate Court that the appellate Court requires such a document to enable it to pronounce judgment in the appeal and such a stage would come only after the hearing in the appeal is concluded. Learned counsel for the petitioner has placed reliance upon Apex Court judgment in the case of The State of Gujarat and another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., wherein the Apex Court has relied upon an earlier decision in the case of Municipal Corporation of Greater Bombay Vs. Learned counsel for the petitioner has placed reliance upon Apex Court judgment in the case of The State of Gujarat and another Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs., wherein the Apex Court has relied upon an earlier decision in the case of Municipal Corporation of Greater Bombay Vs. Lala Pancham and others [(1965) 1 SCR, 42], wherein it was held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. 14. In the case at hand, from a bare perusal of the impugned order passed by the learned appellate Court it is obvious that the learned appellate Court while allowing the additional evidence to be taken on record has not recorded any such reason that the evidence sought to be admitted in evidence is such that it would enable the appellate Court to pronounce a just decision or for substantial justice in the case and the stage for admitting such evidence would come after the hearing is almost concluded in the appeal. It appears that the learned appellate Court while passing the impugned order has not recorded reasons for admitting the document as additional evidence. 15. For the reasons and discussion above, the writ petition deserves to be allowed and the impugned order passed by the learned appellate Court is liable to be set aside. 16. The writ petition is allowed. The impugned order is set aside. However, it is left open to the learned Appellate Court to decide the application moved by the respondent-appellant under Order 41, Rule 27 C.P.C. afresh at proper stage of hearing and to pass suitable orders as provided by clause (b) of Rule 27(1) of Order 41 as well as sub-rule (2) of Rule 27 of Order 41 of the C.P.C., without being influenced by the order of this Court. 17. 17. Interim order dated 5-11-2009 passed by this Court is vacated.