Govind Prasad (Died) And 3 Others vs Mukut Bihari
2021 Latest Caselaw 8086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 1
 

 
Case :- WRIT - A No. - 5095 of 2021
 

 
Petitioner :- Govind Prasad (Died) And 3 Others
 
Respondent :- Mukut Bihari
 
Counsel for Petitioner :- Rama Goel Bansal,Shalini Goel
 
Counsel for Respondent :- Mata Pher,Subhash Chandra Yadav
 

 
Hon'ble J.J. Munir,J.

Heard Ms. Rama Goel Bansal, learned Counsel for the petitioners and Mr. Mata Pher Tiwari, learned counsel appearing on behalf of the sole respondent.

2. Admit.

3. Mr. Mata Pher Tiwari waives his right to file a return on behalf of the sole-respondent and consents that this matter be heard and disposed of.

4. The petitioners have impugned an order dated 29.01.2021 passed by the Additional District Judge, Court No. 1, Mathura in P.A. Appeal No. 10 of 2017, rejecting the petitioners' application to bring on record additional evidence. Through the said application, the petitioners have sought to bring on record an affidavit of Abhai Sharma, son of Chandra Prakash, besides copies of judgments passed in proceedings under the U.P. Act No. XIII of 19721 where other premises have been released in favour of landlord-respondent. This application was contested by the respondent and rejected by the order impugned. Before this Court, there is an objection raised by Mr. Mata Pher Tiwari that the petitioners' application to bring on record additional evidence before the Appellate Authority in an appeal under Section 22 of the Act is not maintainable. He submits that the provisions of Order XLI Rule 27 are not applicable to a statutory appeal under Section 22 of the Act.

5. Ms. Rama Goel Bansal has drawn the Court's attention to Section 10 of the Act. It is extracted below :

10. Appeal against order under sections 8 and 9. - (1) Any person aggrieved by an, order of the District Magistrate under section 8 or section 9 may, within thirty days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose of it himself or assign it for disposal to any Additional District Judge under his administrative control, and may recall it from any such officer, or transfer it to any other such officer.

(2) The appellate authority may confirm, vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit.

(3) No further appeal or revision shall lie against any order passed by the appellate authority under this section, and its order shall be final.

(emphasis by Court)

6. She has further drawn the Court's attention to Section 22 of the Act, which reads:

22. Appeal. - Any person aggrieved by an order under section 21 or section 24 may within thirty days from the date of the order prefer an appeal against it to the District Judge, and in other respects, the provisions of section 10 shall mutatis mutandis apply in relation to such appeal.

(emphasis by Court)

7. It is submitted that under sub-Section (2) of Section 10, the Appellate Authority has been empowered to take any additional evidence. At the same time, the provision of Section 22 clearly stipulate that the procedure applicable in relation to an appeal under Section 10 shall apply mutatis mutandis to an appeal under Section 22. It is, therefore, urged by Ms. Bansal that additional evidence can be taken by the appellate court while determining an appeal under Section 22.

8. This Court has examined the aforesaid provisions. It is true that the appellate court, by virtue of the provisions of Section 22 read with Section 10 of the Act, is empowered to receive additional evidence. Of course, the power is to be exercised on the analogy of the provisions of Order XLI Rule 27 C.P.C. The submission of Ms. Bansal that provision of Order XLI Rule 27 would apply squarely and proprio vigore in view of provision of Section 39(1)(b) of the Act may not be tenable, because the last mentioned provision of the statute does not make any express reference to Order XLI Rule 27 C.P.C. Rather, it speaks generally about receiving evidence on affidavits in the same manner as the Civil Court is empowered under the Code. But, it cannot be gainsaid that the power to receive additional evidence, with the appellate court seized of an appeal under Section 22 of the Act, is certainly there. The manner of its exercise can and ought to be regulated by the provisions of Order XLI Rule 27 C.P.C. on analogy, inasmuch as an appeal under Section 22 of the Act is, after all, an appeal that is decided in the exercise of civil jurisdiction by the Appellate Authority, who is, otherwise, the District Judge. In this connection, reference may be made to the decision of this Court in Radhey Shyam v. IInd Additional District Judge and others, 1980ARC 590, Nanak Prasad v. Sahdeo Prasad Srivastava and Another, 1982 ARC 76, Mohan Lal v. Additional District Judge, Roorkee and others, 2004 (2) ARC 853, Mudabbir Khan and Another v. Laiq Ahmad Khan and others, 1982 ARC 221 and Bhola Nath v. Additional District Judge, Gonda and others, 1985 (1) ARC 445.

9. The aforesaid authorities lend support to the view that I have taken that appellate court has the jurisdiction to take additional evidence, by virtue of provision of Section 10(2) read with Section 22 of U.P. Act No. 13 of 1972. On the merits of the order, it is submitted by Ms. Goel that the appellate court has declined to receive additional evidence on the ground that the predecessor-in-interest of Abhai Kumar, that is to say, his father, has already filed an affidavit before the prescribed authority, and that the present application to bring on record an affidavit by the son, that is to say, the succeeding tenant at the stage of address of arguments in the appeal, is nothing but indulgence in dilatory tactics. She submits that the aforesaid reason is flawed, inasmuch as there is additional material to be placed on record, based on subsequent events or something, which despite due diligence, could not be brought on record by the tenant. A perusal of the impugned order shows that indeed the appellate court has refused to permit additional evidence on the ground that the father had filed an affidavit before the prescribed authority, and further, that effort has been made at the stage when the appeal was set down for address of arguments. He has discarded the plea that the petitioner was earlier unwell and, therefore, could not take steps to bring on record additional evidence, with a remark that there is no medical certification about the petitioner's illness placed before the court.

10. In the opinion of this Court, the jurisdiction to admit additional evidence at the appellate stage is one that has to be exercised ex debito justitiae. The purpose is that some relevant evidence, which could not be placed on record despite due diligence, or has come into existence subsequently, or has come into the knowledge of the person who applies at a later point of time, is not kept away from the cognizance of the court determining the appeal. An appeal under Section 22 is of prime importance to the rights of parties, as the said court is the last court of fact. There is no liberty to the parties to introduce affidavits or lead evidence after the appellate court's determination. Therefore, if some valuable evidence for some good reason has not been brought on record, it should be permitted, unless the evidence is opined to be irrelevant or the party applying is not able to make out a case on terms analogus to Order XLI Rule 27 C.P.C. Here, the petitioner has sought to bring on record evidence by the tenant's son that includes some judgements, where the landlord has secured release of some premises from other tenants. The decisions in the nature of things cannot be expected to be within the petitioner's knowledge, or that of his father at all points of time in the past. It is litigation to which they are not parties, but the landlord is. This kind of evidence, in the opinion of this Court, can certainly be brought on record as additional evidence, as it may have material bearing on the question of bona fide need.

11. In the circumstances, this Court is of opinion that the impugned order cannot be sustained.

12. In the result, this writ petition succeeds and stands allowed. The impugned order dated 29.01.2021 is hereby quashed. The petitioner's application 27-Ga stands allowed. The appellate court is directed to admit additional evidence on record and proceed with the appeal, which shall be determined within a period of two months next, after hearing both parties.

Order Date :- July the 16th, 2021

I. Batabyal