Allahabad High Court
Smt. Nirmala Rani (Since ... vs Sri Ravi Kumar And Another on 2 April, 2019
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 2090 of 2019
Petitioner :- Smt. Nirmala Rani (Since Deceased) And 3 Others
Respondent :- Sri Ravi Kumar And Another
Counsel for Petitioner :- Ajay Kumar Sharma
Hon'ble Manoj Kumar Gupta,J.
The instant petition is directed against the order dated 23.2.2019 passed by the Appellate Court in course of deciding an appeal under Section 22 of U.P. Act No. 13 of 1972. The Appellate Court has rejected the application 158Ga filed by the petitioners (appellants) for remanding the case to the trial Court exercising power under Order 41, Rule 23A/25 CPC.
The facts, in brief, are that a release application was filed by the respondent-landlords under Section 21(1)(a) of U.P. Act No. 13 of 1972. The release application was allowed by the Prescribed Authority by judgment dated 18.3.2013. Challenging the same, appeal under Section 22 being Misc. Appeal No. 54/2013 was filed by the petitioners. During the pendency of the appeal, the petitioners filed application for leading additional evidence, which was allowed by the Appellate Court. They also sought amendment in the written statement for bringing on record certain subsequent events and also plea to the effect that the release application is barred by Ist proviso to sub-section (1) of Section 21 of the Act. Thereafter, the instant application was filed placing reliance upon the judgment of Supreme Court in Corporation of Madras Versus M. Parthasarathy, 2018 (3) CLR 365. The Appellate Court has held that the said judgment would not apply to the facts of the instant case and has accordingly rejected the application. The Appellate Court has also observed that the appeal has been pending since the year 2013 and the petitioners have been making repeated efforts to delay the disposal of the appeal.
In the facts of the case before the Supreme Court, where additional evidence was taken on record by the Appellate Court without granting opportunity to the other side to file evidence in rebuttal, the Supreme Court held that the Appellate Court committed a jurisdictional error. It was also held that in order to enable the parties to prove additional evidence, the Appellate Court had two options, either to remand the appeal to the trial Court or to remit to the trial Court for limited trial on the issue arising in the case in light of additional evidence. It is noteworthy that the instant proceedings arises out of an application under Section 21(1)(a) of the Act, which are summary in nature. These proceedings are decided mainly on basis of affidavits filed by the parties. Since the eviction of the tenant is sought on the ground of bonafide need, therefore, subsequent events are also taken into consideration. The Appellate Court being conscious of the said legal position, permitted amendment in the written statement for bringing on record the subsequent events. The plea to the effect that the release application is barred by the Ist proviso to sub-section (1) of Section 21 was also permitted to be taken. The Appellate Court, while taking on record the additional evidence, had duly granted time to the other side to file evidence in rebuttal. It is not the case of the petitioners that they have not been granted proper opportunity to lead evidence in support of the amendment in the written statement, nor their case that they were not permitted to file evidence in rebuttal to the evidence filed by the respondent-landlords.
Apex Court in P.Purushottam Reddy and another versus Pratap Steels Ltd. 2002 (48) A.L.R 319 considered the powers of the appellate Court as conferred on it under Order 41 Rules 23, 23-A and 25 of the Civil Procedure Code. While setting aside the order of remand passed by the High Court, it has been laid down that the High Court was to examine whether such finding of the trial court was sustainable or not in eyes of law and on facts. Even otherwise also the question could have been gone into by the High Court and a finding could have been recorded on the basis of available material inasmush as the High Court being the court of first appeal, all the question of fact and law arising in the case were open before it for consideration and decision.
The Appellate Court, while deciding the appeal under Section 22 of the Act, is a Court, both of law and fact. It has got ample power not only to take additional evidence, but also to record findings of fact, taking into consideration subsequent events and additional evidence, if any, led before it. Its power are co-extensive with that of the Prescribed Authority.
In Gyatri Devi (Smt.) Versus State of U.P., 2009 (2) ARC 154, it is held by this Court that the Appellate Court being Court of law and fact, should decide the appeal itself instead of remanding the matter as it would infuse fresh life into litigation and would be contrary to the legislative intent. The same view has been taken by the Supreme Court in AIR 1976 SC 866 and number of other judgments of this Court (1990 (2) ARC 280, 1994 (1) ARC 254, 1997 (2) ARC 567).
At this stage, it may be noted that under Order 41, Rule 24, it is specifically provided that where the evidence upon record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit instead of remanding the same to the Appellate Court. In the instant case, all evidence which the petitioners wanted to lead has been taken on record by the Appellate Court with opportunity to the other side to file evidence in rebuttal.
Having regard to the above facts, this Court is of considered opinion that the Appellate Court acted with no illegality in declining to remand the matter to the Prescribed Authority. The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J.)
Order Date :- 2.4.2019
AM/-
