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2013 DIGILAW 637 (ALL)

Ram Prakash v. Addl. District Judge, Court No. 12, Lucknow and Others

2013-02-25

ASHOK PAL SINGH

body2013
Ashok Pal Singh, J.— This writ petition has been filed by the petitioner for quashing the impugned order dated 15.02.2011 passed by the Additional District Judge (Court No.12), Lucknow in S.C.C.Revision No. 3 of 2010 whereby the application moved by him for admitting the additional evidence has been rejected and also for quashing the order dated 01.11.2012 whereby his application for review of the aforesaid order has also been rejected. Brief facts of the case are that the SCC Suit no.99 of 1999 was originally filed by the father of the respondent nos. 3 to 6, the land-lord of the disputed house for recovery of the arrears of rent and ejectment of the petitioner-tenant therefrom. It was decreed by the trial court in favour of the respondent nos. 3 to 6. Thereafter, the SCC Revision no. 3 of 2010 was preferred by the petitioner before the lower court challenging the said decree and during its pendency an application for admitting additional evidence was moved by him for filing a certified copy of the assessment list of Nagar Nigam under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure to show that the rate of rent was Rs.17/- per month and not Rs.70/- per month as was being claimed by the land-lords. The said application was rejected by the learned Additional District Judge by his impugned order dated 15.02.2011 inter-alia on the ground that the said document was received by the revisionist way back in the year 1998 and that he was not shown in it as a tenant. Instead, his brother was shown as a tenant and that too at the rate of rent of Rs.15/- per month and that the revisionist no where in his written statement had stated that either he was living with his brother or the rate of rent was Rs.15/- per month. The application by the petitioner-revisionist to recall the said order dated 15.02.2011 was also dismissed by his second impugned order dated 01.11.2012 on the ground that there was no error apparent on the face of the record in his order dated 15.02.2011. Aggrieved against the aforesaid impugned orders, the petitioner has filed the instant writ petition as already mentioned above. The application by the petitioner-revisionist to recall the said order dated 15.02.2011 was also dismissed by his second impugned order dated 01.11.2012 on the ground that there was no error apparent on the face of the record in his order dated 15.02.2011. Aggrieved against the aforesaid impugned orders, the petitioner has filed the instant writ petition as already mentioned above. The affidavits and counter affidavits have already been exchanged between the parties and this writ petition is being finally disposed of with the consent of the learned counsel for the parties at admission stage itself. I have heard Shri J.P.Mathur, learned counsel for the revisionist and Shri R.N.Tilhari, learned counsel for the respondent nos. 3 to 6. It is submitted on behalf of the petitioner that the document sought to be filed as additional evidence is the certified copy of the House Tax Assessment of Nagar Nigam and as such, a public document. It was a necessary document to establish the rate of rent of the house in question to be Rs.17/- and not Rs.70/- per month as claimed by the respondents-land-lord. Relying upon the case law of Jai Ram Das and sons Versus Mirza Rafatullah Beg, 2005 (23) LCD 39, it has been further submitted by him that a document having a material bearing on a crucial issue arising for decision between the parties is required to be admitted under Order 41 Rule 27 of the Code of Civil Procedure. Learned lower court has manifestly erred in refusing to admit the said document and rejecting his applications. On the other hand, learned counsel for the respondents has submitted that the learned court below has not committed any illegality in rejecting the application of the petitioner in as much as the recourse to the provisions of Order 41 Rule 27 of the Code of Civil Procedure cannot be taken by the petitioner to fill up any lacunae and gaps in evidence. The said document was very much in the knowledge of the petitioner since before the beginning of the suit and as such, the same could have been produced by him in the suit itself. It is not the case of the petitioner that it was discovered later or came into existence after filing of the suit. No satisfactory explanation for failure to file the same in the suit has also been offered by him. It is not the case of the petitioner that it was discovered later or came into existence after filing of the suit. No satisfactory explanation for failure to file the same in the suit has also been offered by him. Reliance was placed by the learned counsel for the respondents upon N.Kamalam Versus Ayyasamy, AIR 2001(SC) 2802; State of Gujrat and another Versus Mahendrakumar Parshottambhai Desai, AIR 2006(SC) 1864; and Roop Chand Versus Gopi Chand Thelia, (1989)2 SCC, 383. At this juncture, it would be pertinent to take notice of the provisions of Order 50 Rule 1(b) of the Code of Civil Procedure and Section 17 of the Provincial Small Cause Courts Act which specifically bars the applicability of the provisions of Order 41 Rule 27 of the Code of Civil Procedure. It is thus clear that the arguments advanced by both the learned counsel are based on wrong notion of law and as a result thereof suffice it would be that the case laws relied upon by both of them are also of no help to them as they all refer to the circumstances in which the additional evidence can be admitted or rejected in view of Order 41 Rule 27 of the Code of Civil Procedure. The only legal way out that could come to the aid of the petitioner in getting his additional evidence admitted at revision stage was to invoke inherent powers of the Court and this authority could be exercised by a revisional court only when it was of the view that the ends of justice require the document sought to be filed admitted. This view finds support from the decisions rendered by this Court in Babu Ram Versus Additional District Judge Dehradun, 1983 (1) ARC 15 and Smt. Gayatri Devi Versus Additional District Judge/Special Judge (E.C.Act) Etawah, 1992 AWC 273. It is clear from the facts of the present case that the assessment list which is the document sought to be filed was not at all necessary to determine the controversy involved as neither the petitioner was shown in it as a tenant nor it displayed the amount of rent as alleged by the petitioner in his written statement. It is clear from the facts of the present case that the assessment list which is the document sought to be filed was not at all necessary to determine the controversy involved as neither the petitioner was shown in it as a tenant nor it displayed the amount of rent as alleged by the petitioner in his written statement. It is further evident from the facts of the case that the petitioner was in the knowledge of the said evidence since before the beginning of the suit and no effort was made by him to bring on record the same during the pendency of the suit. The explanation provided was also not satisfactory. Moreover, the revision was to be decided not by re-appreciation of evidence but only on the basis of the illegality or material irregularity committed by the trial court in passing its order . The petitioner has thus, been rightly found by the lower court not entitled to file the said additional evidence in revision. His review application is also found to have been rightly dismissed by the court below because of there being no apparent mistake in rejecting his application for admitting additional evidence. In view of the above discussion, the writ petition is found to be devoid of any merit and is therefore, dismissed with costs. _____________