Allahabad High Court
Pankaj And 2 Others vs Manoranjan Jain And 4 Others on 14 May, 2024
Author: Neeraj Tiwari
Bench: Neeraj Tiwari
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:86417
Court No. - 50
Case :- MATTERS UNDER ARTICLE 227 No. - 489 of 2024
Petitioner :- Pankaj And 2 Others
Respondent :- Manoranjan Jain And 4 Others
Counsel for Petitioner :- Pankaj Agarwal
Counsel for Respondent :- Yanendra Pandey
Hon'ble Neeraj Tiwari,J.
1. Sri Pankaj Agarwal, learned counsel for petitioners and Sri Yanendra Pandey, learned counsel for respondents.
2. Present petition has been filed for setting aside the impugned judgement and order dated 21.12.2023 passed by District Judge, Aligarh in U.P.U.B. Appeal No.26 of 2020 and further allow the application paper No.31Ga for taking on record the additional evidence.
3. Learned counsel for the petitioners submitted that respondent-plaintiff has filed release application under Section 21(1)(a) of U.P. Act No.13 of 1972 before the Prescribed Authority, which was registered as U.P.U.B. Case No. 1 of 2007. Before disposal of the said case, he has filed application under Order 41 Rule 27 CPC, which was numbered as 58-Ga. Upon the said application, order has been passed to consider the same at the final hearing of the case. He next submitted that U.P.U.B. Case No. 1 of 2007 has been allowed vide order dated 3.3.2020 without considering the 58-Ga application filed under Order 41 Rule 27 CPC. Against the said order, petitioner-defendant has preferred U.P.U.B. Appeal No. 26 of 2020 under the provision of U.P. Act No. 13 of 1972. During the pendency of appeal, he has again filed application, which was numbered as 31Ga giving the reference of earlier application 58Ga as well as some other evidences, which he wants to brought on record. The said application was rejected vide order dated 21.12.2023. He next submitted that in light of judgements of Apex Court as well as this Court in the cases of Union of India vs. Ibrahim Uddin and another reported in 2012(8) SCC 148 & Smt. Geeta Shrivastava vs. Dr. Kaislash Chandra Singhal passed reported in 2024:AHC41008, application filed Order 41 Rule 27 CPC may not be rejected at the very threshold and may have been considered at the final disposal of the appeal considering his relevance to decide the same, therefore, impugned order is bad and liable to be set aside.
4. Sri Yanendra Pandey, learned counsel for respondents though vehemently opposed, but could not dispute the legal position settled by the Apex Court as well as this Court.
5. I have considered the rival submissions advanced by the learned counsel for the parties and perused the record as well as judgements of Apex Court & this Court in the cases ofIbrahim Uddin (Supra) & Smt. Geeta Shrivasta (Supra). Relevant paragraph of the judgement of Ibrahim Uddin (Supra) is quoted hereinbelow:-
"Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
6. From perusal of the aforesaid judgment, it is apparently clear that application has to be considered at the time of final hearing of case considering the facts so referred and also reaching the conclusion that additional evidence was required to be taken on record for disposal of case.
7. The said ratio of law has again followed by this Court in the matter of Smt. Geeta Shrivastava (Supra). Relevant paragraph of the said judgment are quoted below:-
"13. Now coming to the impugned order date 08.08.2023, passed by the Appellate Authority, the Court finds that in substance the Application under Order 41 Rule 27 CPC has been rejected on the ground that the conditions laid down under Order 41 Rule 27 were not satisfied and further that in its opinion the Additional Evidence sought to be brought on record was not required to pronounce judgment or for any other substantial cause. The discretion has been exercised by the Appellate Court against the petitioners (Appellant) even without discussing as to whether the documents sought to be brought on record were necessary or not for deciding the real controversy at hand. Besides, the Application has been rejected even prior to hearing of the Appeal. In the opinion of the Court, the order of the Appellate Authority rejecting the Application is contrary to the ratio of the decision of the Apex Court in the Case of Ibrahim Uddin (Supra) inasmuch as the Application under Order 41 Rule 27 CPC is required to be considered at the time of hearing of the Appeal on merits so as to find out whether the documents/evidence sought to be adduced have any relevance/bearing on the issue involved and the true test being whether the Appellate Court is able to pronounce judgment on the materials before it without taking 7 of 8 into consideration the additional evidence sought to be adduced.
14. In the result, the petition succeeds and is allowed.
15. The impugned order dated 20.12.2023 passed by the Additional District and Sessions Judge, Court No. 9, Kanpur Nagar in Rent Appeal No. 77 of 2023 (Geeta Srivastava Vs. Kailash Chandra Singhal) rejecting the Application filed by the Tenant-Petitioner (Paper No.21-C2) for adducing additional evidence at the Appellate stage is set aside. The Appellate Authority/ Additional District and Sessions Judge, Court No.9, Kanpur Nagar in seisin of the Rent Appeal No. 77 of 2023 is directed to reconsider the petitioner's Application in accordance with law laid down by the Apex Court in its case of Ibrahim Uddin (Supra) and make all endeavor to decide its Appeal expeditiously in accordance with law without granting unnecessary adjournments to either of the parties."
8. In the aforesaid judgment there is no dispute that application so filed has been rejected at the threshold, which is contrary to the law settled by the Apex Court in the matter of Ibrahim Uddin (Supra).
9. Therefore, under such facts and circumstances, the impugned order dated 21.12.2023 passed by District Judge, Aligarh in U.P.U.B. Appeal No. 26 of 2020 rejecting the Application filed by the Tenant-Petitioner (Paper No.31-GA) for adducing additional evidence at the Appellate stage is set aside and petition is allowed. The Appellate Authority/ District Judge, Aligarh is directed to reconsider the petitioner's Application in accordance with law laid down by the Apex Court in its case of Ibrahim Uddin (Supra) and make all endeavor to decide its Appeal expeditiously in accordance with law without granting unnecessary adjournments to either of the parties.
10. At this stage, Sri Yanendra Pandey, learned counsel for respondents submitted that direction may be issued to Appellate Authority to decide the appeal within time bound manner, which is not objected by the learned counsel for the petitioner.
11. Accordingly, District Judge, Aligarh, is directed to decide the appeal, if possible, within three months from the date of production of certified copy of this order. Both the parties are directed to ensure their presence through counsel or in person each and every date fixed by the appellate Court for early completion of proceedings.
Order Date :- 14.5.2024
Junaid
