Amrit Lal vs Santosh Kumar And 3 Ors.
2013 Latest Caselaw 7037 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 7
 
Case :- WRIT - A No. - 62595 of 2013
 
Petitioner :- Amrit Lal
 
Respondent :- Santosh Kumar And 3 Ors.
 
Counsel for Petitioner :- Hem Pratap Singh
 
Counsel for Respondent :- Salma Bano,A.K.Srivastav
 
Hon'ble Ran Vijai Singh,J.

Heard Sri Hem Pratap Singh, learned counsel for the petitioner and Sri A.K. Srivastava, learned counsel for the respondents.

This writ petition has been filed against the order dated 8.10.2013 passed by the Additional District Judge/ Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 on an application filed under Order XLI, Rule 27 of the Code of Civil Procedure in Appeal No. 176 of 2010 (Amrit Lal vs. Santosh Kumar and others) by which the petitioner's application has been rejected.

It appears that the petitioner happens to be a tenant in the accommodation in dispute. The landlord has filed a release application under section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting Rent and Eviction) Act, 1972 against the petitioner.  The said application was allowed. Against that order the petitioner preferred Appeal No. 176 of 2010. In the appeal the petitioner has filed an application under Order XLI, Rule 27, CPC for bringing on record some documentary evidence relating to Suit No. 166 of 2002 (Chinta Mani vs. Rajesh Yadav and others) pending before the Civil Judge, (Senior Division) Varanasi with respect to the same accommodation on the ground that due to fault of the counsel those documents could not be filed earlier. The appellate court rejected the application taking note of the decision of the Apex Court in the case of Haryana State Industrial Development Corporation vs. M/s Cork Manufacturing Company (AIR 2008 SC 56) wherein it has   held that for the lack of legal advice of the lawyers, if evidence was not produced, on that ground an application filed under Order XLI Rule 27, CPC cannot be allowed by the appellate court. 

Learned counsel for the petitioner contended that the aforementioned judgment of the Apex Court has been referred to a Larger Bench. He has also contended that the learned Judge  has noted that in paragraph 7 of the written statement filed before the court below  (paper no. 20-Ga) the petitioner himself has stated about the pendency of the Suit No. 166 of 2002 but in spite of that he has not  permitted to file the documents.  In his submission the documents are necessary for proper adjudication of the matter.

Sri A.K.Srivastava, learned counsel appearing for the respondent submitted that an application under Order XLI Rule 27, CPC can only be allowed in a condition where the party  filing of additional evidence has through out been vigilant and in spite of due diligence the additional evidence could not be filed earlier. In his submission entire ground  on which  application has been filed is  the mistake of the lawyer, due to which  the document could not be filed earlier, therefore, there is no infirmity/illegality in the order impugned.

I have heard the learned counsel counsel for the parties and perused the records.  From the perusal of the writ petition and the argument advanced by the learned counsel for the parties it transpires that the petitioner has already stated in his written statement  with regard to the pendency of Suit No. 166 of 2002 for the same house. In the memorandum of appeal ground has also been taken that with  respect to the house in dispute, a suit for specific performance of contract is pending and therefore, during the pendency of the suit release application is not maintainable.

On being confronted as to for what purpose the petitioner wants to bring on record those papers, learned counsel for the petitioner contented that it is being filed only with a view to support the contention that the petitioner has already taken a ground in appeal that Suit No. 166 of 2002 with respect to the same accommodation is pending and, therefore, release application is not maintainable. The court below has rejected the application holding that an application for filing additional evidence cannot be allowed on the basis of either lack of legal advice or fault of the lawyer. Otherwise also there is nothing on record to show that in spite of due diligence it could not be filed early.  Contrary to this the facts are otherwise as filing of Suit No. 166 of 2002 was in the notice of the petitioner at the time of filing of the written statement before the Prescribed Authority, therefore, there appears to be lack of the  due diligence on the part of the petitioner in not filing the same. Hence, the impugned order passed by the learned Judge, court below cannot be faulted with. 

However, it is for the appellate court, while deciding the appeal on merit, to consider the effect of the pendency of Suit No. 166 of 2002 filed for specific performance of contract. The rejection of the petitioner's application will not bar the appellate court to exercise its power vested in it under Order XLI  Rule 27 (1) (b) which reads as under:

"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral  or documentary, in the Appellate Court, But if----

(a)....

(b) the Appellate 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."

From the perusal of the aforesaid rule it is clear that it is very well in the domain of the appellate court to direct the parties to produce the particular document or witness in case it comes to the conclusion that perusal of such document or statement of witness is necessary for proper adjudication of the matter.

The Apex Court in A Shanmugam vs. Ariya kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalnai Sangam, represented by its President etc. (2012(3) Civil Court Cases 001 (SC) has held that the entire journey of a Judge is to discern the truth from the pleadings, documents and arguments of the parties.  In Dalip Singh vs. State of U.P. and others (2010(2) SCC 114 the Apex Court has observed that truth constitutes an integral part of the justice delivery systemwhich was in vogue in pre-independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has been drastic changes in our value system. In Maria Margarida Sequeria Fernandes and Others vs. Erasmo Jack do Sequeria (Dead) through L.Rs. 2012 (1) Civil Court Cases 344 (S.C.) the Apex Court has held that truth is the basis of justice delivery system. Truth alone has to be the foundation of justice. The entire judicial system has been created only on discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty.

Here in this case as the entire material is available before the appellate court, in case the appellate court comes to the conclusion,  while considering the effect of the pendency of  Suit No. 166 of 2002, that perusal of any document is necessary, it is not powerless to direct the appellant or respondent to produce those documents, if it is necessary for proper adjudication of the matter.

Otherwise also in case  the appeal is dismissed  without considering the  effect of pendency of Suit No. 166 of 2002, the petitioner shall be at liberty to challenge  it before the appropriate court. However, in case the appellate court comes to the conclusion that pendency of suit is  meaningless for deciding the appeal in that eventuality also if any thing turns on this the petitioner shall be at liberty to challenge the same.

With the aforesaid observation the writ petition is disposed of. 

Order Date :- 20.11.2013

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