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2018 DIGILAW 849 (ALL)

KAILASH SAHU v. KAMINI JAIN

2018-04-09

SANGEETA CHANDRA

body2018
JUDGMENT : Sangeeta Chandra, J. Supplementary counter affidavit filed today by the learned counsel for the petitioner is taken on record. 2. This application under Article 227 of the Constitution has been filed challenging the order dated 4.12.2017 passed by the Special Judge, Essential Commodities Act, Jhansi in Rent Control Appeal No. 5 of 2014 (Kailash Sahu v. Smt. Kamini Jain). 3. Learned Court below has not been arrayed as party. 4. Learned counsel for the petitioner prays for and is granted liberty to array the learned Court below as proforma respondent in the array of parties during the course of the day. 5. Learned counsel for the petitioner has submitted that initially the release application of the landlady was allowed. Against the order dated 21.7.2014, the petitioner who is the tenant filed an Appeal. 6. The petitioner filed an application before the learned Court below that Amin Commission be issued for taking measurement of the newly constructed shop by the landlady and also to inspect and report as to how many shops are there in the house in question. It was the specific case of the tenant that the landlady has sufficient commercial space available for her and there was no bona fide need for vacating of the shop occupied by the petitioner. This application was rejected by the learned Court below on 27.10.2017 and the petitioner approached this Court in application under Article 227 numbered as 903 of 2018 (Kailash Sahu v. Smt. Kamini Jain), which petition was dismissed by this Court with a direction that the petitioner may obtain a report from the Nagar Nigam, Jhansi with respect to the number of shops existing in the house in question. 7. After the dismissal of this writ petition by this Court, the petitioner filed an application numbered as paper No. 74-C annexing coloured photographs to show that the landlady has got one shop constructed during the pendency of the Appeal and her son could easily set up his business in the newly constructed shop. Against the application for taking on record additional evidence filed by the tenant, the objections were filed by the landlady saying that although new construction was made by her as was submitted by the tenant, but the said new construction was not a shop, but was used as a lavatory. 8. Against the application for taking on record additional evidence filed by the tenant, the objections were filed by the landlady saying that although new construction was made by her as was submitted by the tenant, but the said new construction was not a shop, but was used as a lavatory. 8. Learned Court below has rejected Paper No. 74-C and the coloured photographs filed along with it on the ground that the coloured photographs are not accompanied by any negatives, and therefore, the additional evidence sought to be filed through application is inadmissible. 9. Learned counsel for the petitioner has submitted that at-least the application for additional evidence could have been taken on record including the photographs and during arguments or during cross examination, while dealing with evidence filed by the parties, it could have been rejected, if it was not found that the evidence submitted was tenable. 10. Learned Court below has prevented the appellant tenant from filing evidence which he could have relied upon during the course of arguments to buttress his case that the landlady had alternative and sufficient commercial space available with her and there were no bona fide need for release of the shop in question. 11. I have perused the order impugned. 12. Learned counsel for the petitioner's argument carries some substance as the tenability or otherwise of the coloured photographs submitted as additional evidence could be looked into at the stage of argument by the learned Appellate Court. The Application Paper No. 74-C could have been taken on record and the matter posted for hearing on merits by the learned Court below. 13. The order dated 5.12.2017 is set aside. 14. The application for taking additional evidence including coloured photographs, if any filed therewith may be considered afresh by the learned Court below and if these photographs are not supported by any negatives, the same observations that have come in the order impugned with regard to untenability of additional evidence could be finality dealt with at the time of decision of the case on merits in the Appeal after hearing of arguments. 15. 15. This Court has already observed in its judgment and order dated 16.2.2018 in matter under Article 227 numbered 903 of 2018, filed by the petitioner tenant that the Rent Appeal is pending before the learned Court below for the last four years and the tenant is enjoying the disputed property and every effort should be made to dispose of the Appeal on merits by the learned Court below within a period of three months. 16. This petition is disposed of with a direction to the learned Court below to decide the Application afresh and also keep in mind the direction issued by this Court on 16.2.2018 in petition under Article 227 No. 903 of 2018.