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2014 DIGILAW 3099 (ALL)

Bhola Singh v. Neetu Singh

2014-10-09

RAN VIJAI SINGH

body2014
JUDGMENT Ran Vijai Singh, J. Heard Sri Ramendra Asthana, along with Sri M.L. Maurya, learned counsel for the petitioners and Sri Sudhir Mehrotra, learned counsel appearing for the respondents. 2. By means of the present writ petition, the petitioners have prayed for issuing a writ of certiorari quashing the order dated 4.8.2014 passed by the learned Additional District Judge, Court No. 16, Kanpur Nagar on the application no. 65(ga) filed in Rent Appeal No. 107 of 2011 (Bhola Singh and Another Vs. Neetu Singh and Others) by which application no. 65(ga) has been rejected.?? 3. Through application no. 65(ga), the petitioners have prayed before the court for accepting the additional evidence.? The aforesaid application was filed under Order 41, Rule 27 of the Code of Civil Procedure (CPC).? Learned appellate court, taking note of the various pronouncements of the Apex Court as well as this Court regarding acceptability of the additional evidence at the appellate stage, held that none of the ingredients as contained under Order 41, Rule 27 of the CPC are satisfied and further, the evidence cannot be accepted without there being any pleadings.? It has also been observed that the petitioners have throughout been negligent and not careful in filing the written statement before the learned prescribed authority.? 4. While assailing the impugned order, learned counsel for the petitioners submits that the release application was decided ex parte, without there being any objection / written statement to the release application filed under section 21(1)(a) of the Act No. 13 of 1972, vide judgment and order dated 18.7.2011.? The petitioners, after coming to know of the aforesaid order, filed Rent Appeal No. 107 of 2011 on 18.8.2011.? Pending appeal, he had also filed an application on 17.11.2011 (enclosed as Annexure No. 9 to the writ petition), praying the court to grant time for filing objection / written statement against the release application.? The submission of learned counsel for the petitioner is that since the court has taken the view that without there being any pleading, no evidence can be accepted, therefore, it was incumbent upon the? appellate court to decide the application filed by the petitioners for filing / accepting the written statement.? 5. The submission of learned counsel for the petitioner is that since the court has taken the view that without there being any pleading, no evidence can be accepted, therefore, it was incumbent upon the? appellate court to decide the application filed by the petitioners for filing / accepting the written statement.? 5. From the perusal of the order of the learned appellate court, it transpires that the appellate court has although taken note of the fact of non-filing of the written statement and pendency of the petitioners' application for filing written statement, therefore, the reasoning recorded for not accepting the additional evidence appears to be faulty for the reason that once the application for filing / accepting the written statement was pending and the court has not decided the same, whereas it was filed after three years before from the date of present application (65 ga), which was filed in the year 2014, i.e., 1.3.2014.? 6. On being confronted as to whether learned counsel for the respondent wants to file counter affidavit on this point, Sri Mehrotra submits that he does not propose to file any counter affidavit and the writ petition may be decided on its own merit on the existing facts.? 7. He submits that the appellate court has taken note of the fact that in spite of the reasonable opportunity given by the Prescribed Authority, the petitioner neither filed any written statement, nor submitted any written submission.? In his submissions, the application filed by the petitioners for filing written statement shall be deemed to be rejected in view of the observation made by the appellate court while deciding the application no. 65(ga).? 8. From the perusal of the records as well as undisputed facts, which are apparent from the impugned order itself that only application no. 65(ga), which was for filing the additional evidence, was under consideration before the learned appellate court, therefore, there was no occasion to express any opinion regarding the pending application filed by the petitioners in the year 2011 for accepting the written statement.? 9. Having heard learned counsel for the parties, I find that the appellate court has erred in rejecting the petitioners' application no. 65(ga) without deciding the application filed by the petitioners for filing / accepting the written statement.? 10. In the result, the writ petition succeeds and is allowed.? 9. Having heard learned counsel for the parties, I find that the appellate court has erred in rejecting the petitioners' application no. 65(ga) without deciding the application filed by the petitioners for filing / accepting the written statement.? 10. In the result, the writ petition succeeds and is allowed.? The order dated 4.8.2014 passed by the learned Additional District Judge, Court No. 16, Kanpur Nagar on application no. 65(ga) filed in Rent Appeal No. 107 of 2011 (Bhola Singh and Another Vs. Neetu Singh and Others) is hereby quashed.? Learned Additional District Judge, Kanpur Nagar is directed to decide the application filed by the petitioners for filing the written statement first?in accordance with law, after hearing all concerned.? 11. In case the learned court below comes to the conclusion that there is a justification for accepting the written statement, in that eventuality, he may re-consider and pass fresh order on the application no. 65(ga) filed by the petitioners.? This exercise has to be done by the learned Additional District Judge, Kanpur Nagar within a period of two months from the date of filing of the certified copy of the order of this Court.? It is also provided that appropriate order be passed in accordance with law?without granting any unnecessary adjournments to the learned counsel for the parties. In case any adjournment sought is not bona fide, that shall only be granted after imposing cost, which shall not be less than Rs. 2,500/- per adjournment, upon the party seeking adjournment with the direction to deposit the cost by the next date fixed.? In case of default in depositing the costs by the defaulting party, the participation in further proceeding of the defaulting party shall be closed. 12. Certified copy of this judgment be supplied to the learned counsel for the parties within three days on payment of usual charges.