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2015 DIGILAW 1901 (ALL)

Buddhan Lal v. Mahendra Nath Gupta

2015-07-14

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. By means of the present writ petition, petitioner is challenging the order dated 2.4.2015 passed in Rent Appeal no. 46 of 2012 dismissing the application filed by the petitioner, namely, 17 Ga with affidavit 18 Ga, and 43Ga with affidavit 44 Ga . By means of these applications, the petitioner sought to bring certain additional evidence on the record to contest the bonafide need of the landlord. 3. The contention of the learned counsel for the petitioner is that the respondent landlord had got vacated certain accommodation from other tenants and these accommodations are available to the landlord for his commercial purpose need. The appellate authority has rejected the application on the ground that the petitioner had not disclosed the date of knowledge of this fact . Further this fact was available to the petitioner much prior to the filing of the appeal,the application filed at such a belated stage cannot be accepted 4. Challenging the order passed by the appellate authority, the contention of the learned counsel for the petitioner is that the appellate authority has not rejected the application to bring on additional evidence, on merit.There is no finding of the appellate authority that for considering the bonafied need of the landlord for establishing his son in business, the facts/additional evidence sought to be brought on record by the application are not relevant.He has placed reliance upon the judgement of this Court Narayan Das Shah & Another Vs. Gulabchand Seth & 3 others, 2015 (1) ARC 361 , wherein reliance has been placed relying upon the judgment of Union of India Vs. Ibrahim Uddin and another 2012 (2) ARC 737, it was held that the application for additional evidence may be considered at the time of final hearing of the appeal. 5. Repelling these submissions , Shri A.C. Nigam learned counsel for the respondent submits that the matter is pending for long and this is second inning of the litigation. The landlord's application was filed in the year 1996 and was allowed by the lower court and the matter was remanded by the appellate authority and now after fresh decision of the Prescribed Authority, appeal is pending since 2012. He submits that the application for bringing additional evidence on record is nothing but an attempt of the petitioner/ tenant to delay the proceedings. He submits that the application for bringing additional evidence on record is nothing but an attempt of the petitioner/ tenant to delay the proceedings. The respondent landlord has filed objection to the application. 6. Having heard learned counsel for the parties and perused the record this court finds that the appellate authority has not examined the application for bringing on record the additional evidence, on merit, while rejecting the same on 2.4.2015 . The facts stated in paragraphs 3 and 4 of the affidavit dated 1.9.2012 accompanying application under Order XLI Rule 27 C.P.C. indicates that the submission of the petitioner is that there exist alternative accommodation in possession of the landlord which can be used for commercial purpose. The question whether the said accommodations are available or suitable and can be used by the landlord or not can be examined by the appellate authority while hearing the appeal. 7. In this view of above the order dated 2.4.2015 passed by the appellate authority is hereby quashed. 8. The matter is pending since long and it is, therefore, directed the appellate authority shall deal with the application 17 Ga with affidavit 18 Ga and application 43 Ga with affidavit 44 Ga at the time of final disposal of the appeal, itself. 9. Learned counsel for the petitioner submits that the petitioner has already lead the additional evidence and no further evidence is required. It is, therefore, provided that the appellate authority shall make an endevour to decide the appeal preferably on the next date fixed and if not possible, then within a further period of four weeks thereafter, without granting unnecessary adjournment to either of the parties. 10. The writ petition is allowed with the observation made above.