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Uttarakhand High Court · body

2020 DIGILAW 172 (UTT)

RAM SINGH v. SARVESH KUMAR MITTAL

2020-03-03

SHARAD KUMAR SHARMA

body2020
JUDGMENT Hon'ble Sharad Kumar Sharma, J. These are two writ petitions, which engage consideration of a common question of fact and law, hence they are being decided together. (A) In Writ Petition (M/S) No. 1914 of 2019, Ram Singh Vs. Sarvesh Kumar Mittal, the challenge given by the petitioner, is to the order dated 30.05.2019, as passed on his application paper No. 15 (Ga), which was preferred by him in Rent Control Appeal No. 14 of 2018, as well as the order dated 30.05.2019, yet again as passed in Rent Control Appeal No. 14 of 2018, in the said Rent Control Appeal, whereby paper No. 20(ga) has been rejected and as a consequence thereto, the application under Order 41 Rule 27, to be read with Application under Sections 151/152 of CPC has been rejected by the Additional District Judge, Ram Nagar, District Nainital. (B) Whereas, the connected Writ Petition (M/S) No. 1803 of 2019, Nandan Singh and others Vs. Sarvesh Kumar Mittal, the petitioner has challenged the impugned orders of the like date i.e. 30.05.2019, passed in Rent Control Appeal No. 13 of 2018, whereby an application paper No. 16(ga) has been rejected, as well as the order of the like date whereby application paper No. 21(ga) in the same Rent Control Appeal, preferred under Section 22 of the Act No. 13 of 1972 has been rejected. Consequently, resulting to rejection of application under Order 41 Rule 27 to be read with Sections 151 and 152 of the CPC by the Court of Additional District Judge, Ram Nagar, District Nainital. 2. Hence, the following judgement. 3. Before venturing into the rival contentions as raised by the learned counsel for the parties to the present writ petitions, which emanates from the consideration of Applications, which were preferred by the petitioner/tenant before the Appellate Court, by invoking the provisions contained under Order 6 Rule 17 of CPC, as well as the provisions contained under Order 41 Rule 27 of CPC, which has been sought to be invoked by the petitioners/tenant during the pendency of the appellate Court proceedings which were being held under the Act No. 13 of 1972, at the stage wherein an Appeal under Section 22 of the Act No. 13 of 1972, was pending consideration before the Appellate Authority. This Court feels it necessary to observe and deal, as to what is the genesis and the source of the legislative powers, so far it relates to legislating the rent laws by the State, the source of the same has been derived from Entry 18 of Schedule VII List II of the Constitution of India, which reads as under:- “18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization." 4. Schedule VII of the Constitution of India; List II, the powers to legislate the laws governing the relation of the landlord and the tenant has been exclusively made as a State subject. Meaning thereby any judicial precedence, relied which was arising in relation to rent laws applicable in other States, which otherwise happens to be a prerogative of that particular State, would be exclusively governed by the provisions of rent laws, as applicable in it. The ratios derived to be applied, therein would not apply in the instant case until and unless the ratios or the precedence, relied by the counsel for the petitioner has been laid down, identically by the Hon'ble Apex Court; in relation to the rent laws which are applicable to the State i.e. the State of Uttarakhand or is containing similar or identical procedural provisions of rent law applicable in other states, and is similar to that of State of Uttarakhand. Yet again, this Court before answering the propriety of the application filed by the petitioner tenant under Order 6 Rule 17, as well as Order 41 Rule 27, it deems it necessary to deal the circumstances and necessity which is alleged to have arisen, to file the same, because in the set of circumstances of the present case the necessity to file an application under Order 6 Rule 17 for amending the pleadings; by the petitioner has arisen because of the intention of tenant for introduction of a new document; which he wanted to be placed on record; to be considered and read in evidence at an appellate stage proceedings under Section 22 of Act No. 13 of 1972, by invoking the provisions contained under Order 41 Rule 27 and that is why the application preferred under Order 6 Rule 17 was filed by the petitioner where he had only sought an amendment in relation to Memorandum of Appeal by adding therein pleading raised in para 5 of the Amendment Application which reads as under:- ß5- ;g fd izkFkZuk i= 09-05-2019 ds lkFk is'k fd;s x;s nLrkost dh lwph tks fd izkFkhZ@vihyk.Vl dks lwpuk ds vf/kdkj ds rgr fofgr izkf/kdkjh ds fu.kZ; 27-11-2018 ds ckn izkIr gq;s Fks vkSj tks mijksDr jsUV dUVªksy vihy ds fu.kZ; ds fy, furkar vko';d gS dks mijksDr vihy ds vk/kkj esa fy;k tkuk U;k; fgr esa vko';d gSA ftlds fy, izkFkhZ@vihyk.Vl mijksDr of.kZr jsUV dUVªksy vihy esa fy;s x;s vk/kkjksa esa fuEufyf[kr vk/kkj dks la'kks/ku ds ek/;e ls tksM+uk pkgrk gSAÞ 5. In fact, the incorporation of the amended pleading of para 5 in the Memorandum of Appeal; was interdependent upon the consideration of an application under Order 41 Rule 27 of CPC because the amendment was alleged to be clarificatory in nature and was in relation to the document which the petitioner wanted to introduce by way of evidence at appellate stage. The logic behind amendment is that the introduction of documents sought to be made by the petitioner by filing an application under Order 41 Rule 27 of CPC in appeal otherwise could not have been taken into consideration by the appellate Court until and unless there happens to be a corresponding pleading in relation to the documents which has been sought to be read in evidence in Rent Control Appeal. Hence, the amendment sought for by filing of an application on 24th May 2019 under Order 6 Rule 17 of C.P.C. the petitioner had exclusively only prayed for introducing para 5 of the amendment application, which has already been referred above, which rather only related to the presentation of the documents which was sought to be placed on record by the petitioner in appeal by way of additional evidence invoking Order 41 Rule 27 of C.P.C. 6. The provisions of the Code of Civil Procedure, which has been referred to under the Act and Rules as framed and had been made applicable over the proceedings under the Act. A very peculiar argument which has been raised by the counsel for the petitioner, is that if the provisions contained under Section 34 of the Act No. 13 of 1972, is read in consonance to the provisions contained under Rule 22 of the rules framed under the Act, the provisions of the CPC; as a whole, is being argued, that it would be deemed to be made applicable in all the proceedings which are held under the Act No. 13 of 1972, irrespective of the fact that it is otherwise proceedings of summary in nature. 7. With all due reverence, at my command, I am in absolute disagreement with the argument, as extended by the learned counsel for the petitioner to the effect that the provisions of the CPC as a whole, would be applicable under the deeming provision over all the proceedings governed by a special statute, that is Act No. 13 of 1972, particularly when the legislature had consciously, provided that the provisions contained under Section 34 which has only extracted the applicability of the provisions of CPC to a limited extent only and that is limited in its applicability within the scope as detailed and provided therein under Rule 22 of the UP Act No. 13 of 1972, which is quoted hereunder:- “22. Power under the Code of Civil Procedure, 1908 [Section 34(1) (g).- The District Magistrate, the Prescribed Authority or the Appellate Authority shall, for the purposes of holding any inquiry or hearing any appeal or revision under the Act, shall have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908 when trying a suit, in respect of the following matters, namely- (a) the power to dismiss an application, appeal or revision for default and to restore it for sufficient cause, (b) the power to proceed ex parte and to set aside, for sufficient cause, an order passed ex parte; (c) the power to a ward costs and special costs to any successful party against an unsuccessful party; (d) the power to allow amendment of an application, memorandum of appeal or revision; (e) the power of consolidate two or more case of eviction by the same landlord against different tenants; (f) the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned." 8. Hence, I am of the view that once the legislature consciously extracts the limited applicability of the procedural law, over special statute particularly the field of law which is covered by Entry 18 of List II of Schedule VII of the Constitution of India, the applicability of the general procedural law governing the procedure of regular civil proceedings, would not be made attracted to be made applicable in the proceedings which is summary in nature and is emanating from a special statute, otherwise the legislature might not have consciously introduced Section 34 to be read with Rule 22 of Act No. 13 of 1972 and hence the argument as raised by the learned counsel for the petitioner is answered in negative, that the provisions CPC as a whole would be applicable. 9. 9. Coming down to the application which has been preferred by the petitioner who is the tenant in the proceedings being held under Section 21(1)(a) of the Act No. 13 of 1972, for release of the tenement, he has filed an application under Order 41 Rule 27 of CPC for bringing the documents on record which has been detailed in his application itself, thus submitted, which was preferred by him on 9th May 2019, along with the list of documents by invoking the provisions contained under Order 41 Rule 27 of C.P.C. 10. In order to answer the arguments which has been extended by the counsel for the petitioner, as to whether at all the documents which has been sought to be introduced subsequently by the petitioner, which was obtained by him later by invoking the provisions contained under the Right to Information Act; whether the said documents would be falling to be within the exception clause as provided under the Order 41 Rule 27(aa), is a question the answer of which is to be extended. The provision of Order 41 Rule 27 of CPC in it an amendment was carried by Act No. 104 of 1976 of CPC, which has been made effective w.e.f. 1st July 1977, it has inserted sub clause (aa) to Order 41 Rule 27 which reads as under:- “[(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]" 11. This amendment by insertion as made w.e.f. 01.07.1977, by Act No. 1976, therein had been subsequently further qualified by the State amendment made by the Allahabad High Court by introducing clause (b), which provides that an additional evidence sought to be adduced by a party to an Appeal in evidence will have to establish that the document thus sought to be produced on record, despite of due diligence was not within his knowledge or could not be produced by him at the time when the decree under appeal was passed or made despite of his best effort, and exercise of due diligence. “ALLAHABAD. “ALLAHABAD. – (1) Isert the following as clause (b): “(b) the evidence sought to be adduced by a party to the appeal is evidence, which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree under appeal was passed or made, or."; and (2) Remember the existing clause (b) as clause (c).". 12. I am of the view that the general provisions of sub clause (aa) of Order 41 Rule 27 it has to be read with Allahabad High Court Amendment, made in clause (b), and it will not be applicable or extracted to be applied by overriding the State Amendment of clause (b) as introduced in the State of UP and made applicable under the Reorganization Act, in the State of Uttarakhand, where there is absolute divergence in the intention of sub clause (aa) of Order 41 Rule 27 then that of clause (b) as introduced by Allahabad High Court amendment. 13. Even otherwise also, the principal provisions of Order 41 Rule 27, it rather starts with a non-obstinate clause, which rather creates a restriction that in the proceedings of the Civil Suit in which judgement is rendered and is under challenge in Appeal invariably, no additional evidence should be permitted to be carried until and unless the straight jacketed procedural conditions as provided by the state amendment is fulfilled at the stage of considering the application under Order 41 Rule 27, as in the instant case it happens to be the application as filed by the petitioner/tenant dated 9th May 2019. The said provision of Order 41 Rule 27 of C.P.C., will not be applicable in the proceedings under the Act No. 13 of 1972, the reason being that even if the argument as extended by the learned counsel for the petitioner is taken into consideration, in the manner in which it has been projected; even otherwise also for the reason above and in either of the circumstances, i.e. either under Order 41 Rule 27 (aa) or the Order 41 Rule 27 (b) as introduced by the Allahabad High Court amendment, the said provision has been made applicable only for adducing additional evidence only in those circumstances or situations where in the principal proceedings of Appeal, the challenge is given to a “decree", and I am of the considered view that a judgement rendered by the Prescribed Authority in a proceedings under Section 21(1)(a), will not fall to be within the ambit of the definition of decree as defined under CPC, because it will not be executable under Order 21 of C.P.C., and also because when the Act No. 13 of 1972, itself has the inbuilt mechanism of the execution of judgement rendered in the summary proceedings, its not a decree, hence the provisions of Order 41 Rule 27 will not be applicable in the instant case. The decree as defined under the CPC in its definition clause is contained under sub Section (2) of Section 2 of the CPC which reads as under:- “(2) “decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [the words and figures “Section 47 or" omitted by Act 104 of 1976, S.3 (w.e.f. 1-2-1977). section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 14. section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. 14. The definition of “Decree", it altogether lays down the different parameters of determination of expression of an adjudication and here an adjudication or decision, would not mean a summary adjudication as that contemplated under the Act No. 13 of 1972, but rather an adjudication of a complete regular civil proceedings contemplated to be governed by the procedure on its strict application of the complete provisions of the CPC and not the exclusive and limited provision of C.P.C., which has been made applicable in the proceedings under Section 21(1)(a) by virtue of the provisions contained under Order Section 34 to be read with Rule 22 of the Act No. 13 of 1972. 15. Be that as it may. Even if a presumption is drawn in the light of the argument which has been extended by the learned counsel for the petitioner that his application, preferred by him on 9th May 2019, the provisions contained under Order 41 Rule 27 would be made attracted in view of clause (aa) or even clause (b) for that matter, as introduced by the Allahabad High Court amendment; I am of the view that as per the judgements, which had been relied by the learned counsel for the petitioner himself, the attraction of the provision contained under Order 41 Rule 27, would only come into play when the applicant who invokes the provisions contained under Order 41 Rule 27, at an appellate stage satisfies and fulfils the conditions and parameters of its entertainment of an application as required under Order 41 Rule 27, because otherwise also under law generally the provisions as contained under Order 41 Rule 27, will not be attracted invariably in all cases even in a regular appellate proceedings, if the conditions therein are not satisfied for filing of an application to introduce additional evidence. The conditions given therein even otherwise according to Order 41 Rule 27, be it under whatsoever manner either under clause (aa) or under clause (b), as introduced by the state amendment, these are the ingredients which has to be satisfied by the applicant to the application, those are (1) he will have to establish that the document was not in his knowledge, (2) despite due diligence he could not placed them on record earlier and (3) that the said document which was brought to his knowledge at a later stage, are essential to settle the controversy effectively. 16. If the application of the petitioners, as preferred by them on 9th May 2019, itself under Order 41 Rule 27 of CPC, is taken into consideration, all these parameters contemplated to be satisfied, prior to the filing of an application under Order 41 Rule 27 of CPC, was not available therein in the pleadings; hence the application itself will not fall to be within the ambit of the provisions contained under Order 41 Rule 27 clause (aa) or clause (b). Because there is no such plea apparently raised in the application as such, that the petitioner did exercise his due diligence to procure the documents, which has been sought to be placed on record to be read in evidence, and particularly when if there reference is made to the documents in the list of documents which was supplied with the application under Order 41 Rule 27 of CPC, they all pertain to the proceedings and incidents held prior to the invocation of the provisions contained under Section 21(1)(a) of the Act No. 13 of 1972 by the respondent/landlord. In the absence of there being any plea of diligence, in the absence of there being any such plea to substantiate the relevance of those documents to be considered in an Appeal under Section 22 of Act No. 13 of 1972, the provisions of Order 41 Rule 27 of CPC, would not apply in the proceedings of Appeal contemplated under Act No. 13 of 1972. 17. 17. There is another argument which has been raised by the learned counsel for the tenant/petitioner by drawing the attention of this Court to the provisions contained under Rule 22, as framed under the Act No. 13 of 1972, particularly a reference has been made to clause (f) of Rule 22, which is an exception carved out with regards to the preceding clauses under the rules, governing the procedure extracted from CPC to be made applicable over the proceedings under the Act No. 13 of 1972, which reads as under:- “(f) the power referred to in Sections 151 and 152 of the Code of Civil Procedure, 1908 to make any order for the ends of justice or to prevent the abuse of the process of the authority concerned." 18. The powers referred to under Sections 151 and 152 of the CPC, is to enable the Court to make any Order to meet the ends of the justice or to prevent the abuse of power of authority concerned. He submitted, though despite of the absence of pleadings or case taken in the writ petition, that in what manner the denial of the application to bring additional document on record to be read in evidence, would amount to be an abuse of process, so as to attract Section 151 of the Code of Civil Procedure. Rather to the contrary, this Court is of the view that when the documents itself which are sought to be adduced by way of additional evidence to be considered in a proceedings, it happens to be that of date prior to the institution of the proceedings under Section 21(1)(a) itself. Particularly, also when there is a lack of pleadings in his application, that the petitioner had exercised his due diligence, particularly when there are lack of pleading as to what relevance the documents sought to be placed on record by way of additional evidence would have relevance for adjudicating the Appeal. The spirit of abuse of process contemplated under clause (f) of Rule 22; would rather be read in contrary against the petitioner, that in an event if the application under Order 41 Rule 27 of CPC is allowed that will amount to be an abuse of the proceedings of the Appeal for the adversary respondent. 19. The spirit of abuse of process contemplated under clause (f) of Rule 22; would rather be read in contrary against the petitioner, that in an event if the application under Order 41 Rule 27 of CPC is allowed that will amount to be an abuse of the proceedings of the Appeal for the adversary respondent. 19. There is another context, under which the provisions of sub Rule (f) of Rule 22, is to be taken into consideration would be where the residuary provision of Section 151 and 152 of CPC; has been attracted to be made applicable. The insertion of Section 151, under Rule 22 (f), if it is to be read in the spirit as to what was the legislative intent behind the provisions contained under Section 151 of CPC, which has been postulated by the Hon'ble Apex Court in a judgement reported in 2008 SC 1190, State of UP and others Vs. Roshan Singh (Dead) by LRs and Others, particularly a reference ay be had to paras 7 and 8 of the said judgement which is quoted hereunder:- “7. The principles which regulate the exercise of inherent powers by a court have been highlighted in many cases. In matters with which the CPC does not deal with, the Court will exercise its inherent power to do justice between the parties which is warranted under the circumstances and which the necessities of the case require. If there are specific provisions of the CPC dealing with the particular topic and they expressly or necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the CPC. The inherent powers of the Court are not to be used for the benefit of a litigant who has remedy under the CPC. Similar is the position vis-à-vis other statutes. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151 CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The object of Section 151 CPC is to supplement and not to replace the remedies provided for in the CPC. Section 151 CPC will not be available when there is alternative remedy and same is accepted to be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot be risen to inherent power. The inherent powers of the Court are in addition to the powers specifically conferred to it. If there are express provisions covering a particular topic, such power cannot be exercised in that regard. The section confers on the Court power of making such orders as may be necessary for the ends of justice of the Court. Section 151 CPC cannot be invoked when there is express provision even under which the relief can be claimed by the aggrieved party. The power can only be invoked to supplement the provisions of the Code and not to override or evade other express provisions. The position is not different so far as the other statutes are concerned. Undisputedly, an aggrieved person is not remediless less under the Act. 8. The conclusions of the High Court are not only cryptic but also without indication of any basis. As rightly contended by learned Counsel for the appellant long after the period provided for preferring an appeal under Section 12 of the Act, the application under Section 151 CPC was filed." 20. In the aforesaid authority it had provided therein in the above ratio that the inherent residuary provision contemplated under Section 151 of CPC would only be made applicable, over those areas of the proceedings where the CPC is silent. Since in the case at hand, the petitioner himself has drawn to apply the provisions contained under Order 41 Rule 27 of CPC, now, he cannot take shelter to Section 151, which is residuary provision which could not be invoked at the later stage, if had it not been provided under Order 41 Rule 27 CPC and not otherwise. 21. An identical question and issue has been dealt with by the Hon'ble Apex Court in yet another judgement reported in AIR 2005 SC 242 , National Institute of Mental Health & Neuro Sciences Vs. 21. An identical question and issue has been dealt with by the Hon'ble Apex Court in yet another judgement reported in AIR 2005 SC 242 , National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara, where the Hon'ble Apex Court in its para 12 has laid down that the inherent exercise of powers under Section 151, cannot be utilised by the Courts dealing with the judicial proceedings to nullify procedure which is already self imbibed and explicitly contained in the Code of Civil Procedure. Hence the reference of Section 151, in sub clause (f) of Rule 22 of Act No. 13 of 1972, would not be attracted in those circumstances where the petitioner himself has invoked the provisions contained under Order 41 Rule 27 CPC, which according to him under his deeming concept of applicability of the CPC in the proceedings of Act No. 13 of 1972 has been sought to be attracted and made applicable in the present case. “12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal , it has been held that inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bye-pass Section 10 CPC by invoking Section 151 CPC." 22. The provision of Section 151 CPC which is residuary in nature, will not apply under Rule 22(f), so for the petitioner presses the specific provision of Order 41 Rule 27 of CPC. The learned counsel for the petitioner in support of his arguments in order to sustain his application under Order 41 Rule 27 of CPC, in a appellate proceeding under Section 22 of the Act No. 13 of 1972, has made reference to a judgement on which he has relied particularly as that reported in 2012 (8) SCC 148 , Union of India Vs. Ibrahim Uddin and Another. In support of his contention, he has made reference to paras 36, 38, 42 and 49 of the said judgement which are quoted here under:- “36. Ibrahim Uddin and Another. In support of his contention, he has made reference to paras 36, 38, 42 and 49 of the said judgement which are quoted here under:- “36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But 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 does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)]. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)]. 42. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the Court of further appeal to see, if the discretion under this rule has been properly exercised by the Court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the rule. 49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193 ; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053 )." 23. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193 ; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053 )." 23. The spirit and purpose precisely which has been dealt with particularly in the aforesaid judgement relied by petitioner/tenant, the implications of Order 41 Rule 27 of CPC is concerned that has been provided under para 49 of the said judgement. Rather para 49 of the said judgement, as referred to above, rather the said para creates a bar that an application under Order 41 Rule 27 of the CPC, will not be invariably applicable in these cases or circumstances, where the applicant had an opportunity to adduce an evidence at an earlier stage of the proceedings of trial, but he has not availed it and particularly when the failure to avail or he has not availed, it though available to him, since lack of opportunity is not a ground pleaded in his application filed under Order 41 Rule 27 of the Code of Civil Procedure, which has been sought to be pressed in his arguments in the writ petition it cannot be accepted now at this ripe stage of the writ petition. 24. 24. Apart from it, the said ratio on which the reliance has been placed by the learned counsel for the petitioner by extracting the aforesaid paragraphs for the purposes of attracting Order 41 Rule 27 of CPC in the present case, it would not be applicable in the circumstances of the instant case, because as per the wisdom of this Court; since those proceedings were emanating from an independent regular Civil Suit where the decree sought was for declaration of rights in relation to the property in dispute therein, which was situated in Gwalior; since it was an adjudication of a regular proceedings and regular civil rights over property where a decree is to be formulated in the manner as defined under sub Section (2) of Section 2 of the CPC, the ratio which was dealt with in relation to the Order 41 Rule 27 of CPC in the said authority (supra), will not be read in the present summary case under a Special Act, in consonance to the regular proceedings of declaration of rights and the same cannot be extracted to be made applicable to the summary proceedings of the Act No. 13 of 1972, where this Court has already held that the provision contained under Order 41 Rule 27 of the CPC will not be applicable, hence once it is excluded in its applicability specifically by Rule 22 to be read with Section 34 of the Act No. 13 of 1972, where the said provision has not been made applicable by its incorporation under Rule 22, which itself amount to be an specific exclusion of its applicability over the proceedings to be held under Act No. 13 of 1972. 25. Another judgement, to which the learned counsel for the petitioner had made reference to, is that as rendered by the Hon'ble Apex Court in the matters of State of Gujarat and another Vs. Mahendrakumar Parshottambhai Desai (Dead) by LRs., reported in 2006 (9) SCC 772 , as rendered by the Hon'ble Apex Court on 10th April 2006. Yet again, this Court is to observe that the learned counsel for the petitioner has placed reliance on paragraph Nos. 10 and 11 of the said judgement which are quoted hereunder:- “10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. Yet again, this Court is to observe that the learned counsel for the petitioner has placed reliance on paragraph Nos. 10 and 11 of the said judgement which are quoted hereunder:- “10. We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure — I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for “substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay v. Lala Pancham and Ors. [1965]1SCR542 wherein this Court 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. 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. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence. 11. We find no error in the approach of the High Court. We have earlier noticed the long history of litigation which preceded the filing of the suit. The documents sought to be brought on record are not documents which were discovered later or came into existence after the filing of the suit. The documents are part of the Government records and they could have been produced in the suit." 26. Even that if the said judgement is taken into consideration where the principals pertaining to the applicability of the provisions contained under Order 41 Rule 27 of CPC, is referred to it was a case where the proceedings which was adjudicated by the High Court of Gujarat at Ahmedabad vide its impugned judgement under challenged therein dated 07.05.2002, it was yet again arising out of a regular First Appeal No. 969 of 1994 which stood dismissed. Since the said proceedings too being arising out of a regular civil proceedings arising out of the civil applications preferred before the court below, as well as in those cases the principal propounded about the applicability of Order 41 Rule 27 of CPC cannot be doubted with but the said ratio as laid down in State of Gujarat's case (supra), will not apply in the present case for the reason being that the present case is arising out of the summary proceedings under Act No. 13 of 1972, i.e. a special statute governing the relation of landlord and tenant, where in accordance with Section 34 to be read with Rule 22, the provisions of the CPC has not been completely or in to to, made applicable in the proceedings under the Rent Control Act of 1973, and only a part thereto referred under Section 34 to be read with Rule 22 has been made applicable. Since it does not attract the applicability of Order 41 Rule 27 CPC, the same would not be applicable in an appeal under Section 22 of the Act. Hence, this judgment is of no benefit, as argued by the learned counsel for the petitioner, hence the same is declined to be accepted and made applicable herein. 27. In the said judgement too, where the Civil Application Nos. 964 and 1150 of 2002, were under consideration it was before the Civil Court, where again, it was, yet again a regular civil proceedings, where the intrinsic measures of adducing the case as contemplated under CPC and Evidence Act was to be made applicable and there the application under Order 41 Rule 27 of CPC was sought to be attracted in a proceedings of First Appeal preferred under Section 96 of the Code of Civil Procedure and herein the provisions contained is that as provided under Section 22 of Act No. 13 of 1972, hence the said ratio it cannot be put at a common pedestal and in parlance to the provisions contained under Section 96 of the Code of Civil Procedure, so as to attract the intrinsic provisions contained under Order 41 Rule 27 of CPC, which apparently stands excluded by Rule 22 of the Act No. 13 of 1972. 28. Another judgement, on which the petitioner has place reliance is that as reported in 1994 (2) SCC 487 , Kalisaran Vs. 28. Another judgement, on which the petitioner has place reliance is that as reported in 1994 (2) SCC 487 , Kalisaran Vs. Bhagwan Singh and Another, and particularly he has drawn the attention of this Court to the contents of para 2 of the said judgement which is quoted hereunder:- “2. One Inder Singh (since deceased) obtained an ex parte order from the Rent Controller for eviction of one Natha Singh, whom he claimed to be a tenant under him, from a factory situated at Gill Road, Ludhiana and in execution thereof took possession of the premises. Thereafter on September 28, 1973, the appellant herein filed an application seeking an order under Order XXI Rule 100 of the CPC (‘Code' for short) alleging that he had been illegally dispossessed in execution of the order for eviction made against Natha Singh and praying for restoration of his possession. He contended that Inder Singh, Bhagwan Singh and Rattan Singh, who were the members of a joint Hindu family and were coparceners, were owners of the factory building in question. Bhagwan Singh, as one of the members of the said joint Hindu family, let out the factory building to him (the appellant) on behalf of the joint Hindu family on a monthly rent of Rs. 200/- on July 10, 1958. Since then, the appellant contended, he was in occupation of the disputed premises as a tenant inducted by Bhagwan Singh on behalf of the joint Hindu family and he had been paying rent regularly to Bhagwan Singh who had been issuing receipts. He further contended that taking advantage of his absence Inder Singh, in conspiracy with Natha Singh, obtained possession of the factory building in execution of the order of for eviction by breaking open the lock. According to the appellant he was in possession of the disputed premises in his own right and, therefore, he could not be dispossessed there from in the manner it was done. He asserted that he was not occupying the premises on behalf of Natha Singh." 29. According to the appellant he was in possession of the disputed premises in his own right and, therefore, he could not be dispossessed there from in the manner it was done. He asserted that he was not occupying the premises on behalf of Natha Singh." 29. If the genesis of the proceedings which reached up to the Hon'ble Apex Court in the said matters of Kalisaran (supra) is taken into consideration it was an order of Rent Controller created under the said Act; for eviction of a tenant occupying the premises in relation to the factory which was situated in Ludhiana and governed by the provisions of the Rent Control Act, as applicable in the State of Punjab and Haryana. The said judgement was rather dealing with the impact of provisions contained under Order 21 Rule 100 of CPC, which was sought to be attracted in the proceedings before the rent controller for eviction in the State of Punjab and Haryana and the said judgement in view of Entry 18 of Schedule VII of list II, would not apply in the matters under UP Rent Control Act No. 13 of 1972 applicable in Uttarakhand, for the reason being that this Court at this stage of argument has not been made aware by the counsel for the petitioner by placing documents on record, of the fact as to whether what was the procedure laid down to be adhered to by the Rent Control Courts, created in the State of Punjab under the Rent Control Laws as applicable to it in the State, and in the said vacuum of argument or the evidence placed on record by the counsel for the petitioner, about the law as prevalent in the State of Punjab the said ratio of para 2 attracting Order 21 Rule 100 and simultaneously a reference to it as made by the learned counsel for the petitioner to attract the provisions of Order 41 Rule 27 of CPC, in its generality to the rent control proceedings in the State of Uttarakhand, I am of the view that the said provisions would not apply merely because of the deeming concept of applicability of the CPC, in its entirety over the proceedings of Act No. 13 of 1972 which would not be applicable. 30. 30. In that view of the matter and for the reasons aforesaid, after having heard the learned counsel for the parties at length, this Court summarises the controversy in the following manner:- (1) The deeming provisions and the concept of argument of the learned counsel for the petitioner of the applicability of the CPC in its entirety over the proceedings under Act No. 13 of 1972 is not tenable. The provision of Code of Civil Procedure will not be applicable in totality over the proceedings under Act No. 13 of 1972. (2) The provisions of Order 41 Rule 27 of CPC would not be applicable in the proceedings of Appeal under Section 22 of the Act No. 13 of 1972, as the same has been excluded to be applied by the provisions contained under Rule 22 framed under Section 34 of the Act No. 13 of 1972. (3) Even the application, which was filed under Order 41 Rule 27 of CPC, does not satisfy the parameters, which are the conditions precedent to be pleaded prior to filing of an application under Order 41 Rule 27 of CPC as contemplated under Order 41 Rule 27(aa) and (b), as introduced by the Allahabad High Court amendment. (4) Even otherwise also all the documents which has been referred to in the list annexed with the application under Order 41 Rule 27 of CPC, were the documents which was in existence even prior to the initiation of the proceedings under Section 21(1)(a) under the Act No. 13 of 1972, the application under Order 41 Rule 27 CPC has been rightly rejected and consequently the rejection of the application Order 41 Rule 27 of CPC and the consequential rejection of application under Order 6 Rule 17 of the CPC, made by the appellate Court impugned in the present writ petition is hereby upheld. As it does not suffer from any apparent legal error. 31. This Court does not find any mistake or an apparent error in the judgement impugned under challenge before this Court to exercise its supervisory jurisdiction under Article 227 of the Constitution of India. Consequently, the writ petition fails and is accordingly dismissed. 32. However, there would be no order as to cost.