Shanti Devi Mehra vs Shri Vinod Kumar Jain And Anr.
2008 Latest Caselaw 459 Del

JUDGMENT

Vipin Sanghi, J.

1. This petition under Article 227 of the Constitution of India has been preferred to challenge the order dated 05.09.2006, passed by the Additional Rent Control Tribunal (ARCT), Delhi in RCA No. 623/2003, filed by the respondent-landlord. The said appeal had been preferred by the respondent-landlord on account of the dismissal of the eviction petition filed by him against the petitioner herein on the ground of subletting of the tenanted premises by the petitioner herein in favor of one Ashok Kumar. By the impugned order, the learned ARCT has allowed the application filed under Order 41 Rule 27 CPC by the respondent-landlord subject to costs of Rs. 3000/- and remanded the matter back to the trial Court with the direction to redecide the same after permitting the respondent herein to produce the witnesses in terms of Order 41 Rule 27 CPC within three months, after giving an opportunity, to the petitioner herein also to rebut the evidence.

2. The case of the respondent-landlord was that the premises had been let out to Smt. Shanti Devi Mehra, the petitioner herein, and that she in turn sublet the same to Sh. Vinod Kumar Jain, who was carrying out his business under the name and style of M/s Ashoka Agencies. Before the Rent Controller one of the witnesses summoned by the respondent-landlord for M/s Pearl Drinks Limited i.e. PW-5 had stated on oath that they supplied soft drinks to M/s Ashoka Agencies, a proprietorship concern of Smt. Shanti Devi, the petitioner. The case of the petitioner is that Ashok Kumar is an employee of the petitioner, who is an old lady. Due to the aforesaid testimony of PW-5, the eviction petition had been dismissed. During the pendency of the aforesaid appeal before the learned ARCT, the respondent filed the application under Order 41 Rule 27 CPC and submitted that the respondent had filed an injunction suit against the petitioner herein and in those proceedings certain records had been summoned by the respondent-landlord from which it transpired that Ashok Kumar was running the business of selling of cold drinks in a portion of the suit premises. It was further claimed that the respondent had come to learn the bank accounts being operated by Ashok Kumar showing the address of the suit premises, in which the amounts received by him from the business of M/s Ashoka Agency was being credited and payments were being made from the said amount in relation to the business of cold drinks. The learned ARCT allowed the aforesaid application. Paragraphs 7 & 8 of the impugned order are relevant and read as follows:

7. Ld. Counsel for the respondent had cited the judgment as contended with the application filed by the appellant was only to fill up the lacuna that after few years in this regard one can observe the presence of subletee and his capacity is always to the subject knowledge of the tenant. It is the tenant who is supposed to explain the reasons of the presence of the third party.

8. I have gone through the provisions of Order 41 Rule 27 of CPC in the facts of this case, the additional evidence they want to lead would clarify the real contradictions between the parties which may throw light about the presence of Sh. Ashok Kumar in the suit premises. Thus, the application is allowed subject to payment of Rs. 3000/- as costs. Trial court is directed to re-decide the matter by permitting the appellant to produce relevant witness in terms of Order 41 Rule 27 of CPC of which a copy of the application be filed on the very first date of the appearance in the trial court. Trial court is directed to decide the matter within three months preferably after giving an opportunity to the respondent also to rebut the evidence, if any. Parties are directed to appear in the trial court on 14.9.2006. Copy of this order be sent to the trial court along with Trial court record. Appeal file be consigned to record room.

3. Before me it is submitted by learned Counsel for the petitioner, by relying upon the decision of the Supreme Court in "Municipal Corporation of Greater Bombay v. Lala Pancham" that the respondent-landlord could not have been permitted to lead additional evidence to merely fill up the lacunas in the evidence led by him and the retrial could not have been ordered under the garb of leading additional evidence. He submits that the evidence that was available on record was sufficient to enable the Court to pronounce judgment. Order 41 Rule 27 CPC does not entitle the appellate Court to permit any fresh evidence to be led in only for the purpose of pronouncing judgment in a particular way. He relies on the following observations of the Supreme Court from the said decision:

If the High Court, in making these observations, was referring to the provisions of Order XLI Rule 27, Code of Civil Procedure is ought not to have overlooked the mandatory provisions of Clause (b) of Sub-rule (1) of Rule 27. No doubt, under Rule 27, the High Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the High 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 High 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.

4. He further submits that the petitioner is an old lady and the endeavor of the respondent is to drag her into litigation and prolong her suffering.

5. On the other hand, the submission of learned Counsel for the respondent is that the learned ARCT having exercised the jurisdiction vested in it in a legal manner, it is not for this Court while exercising jurisdiction under Article 227 of the Constitution of India to interfere with the same. He relies on 2002 IV AD Delhi 221 "Management Committee of Montfort Sr. Sec. School v. Vijay Kumar and Ors." to submit that the power under Article 227 of the Constitution of India is exercised to keep the Courts below and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. The jurisdiction of superintendence over Courts and Tribunals is exercised in exceptional or special circumstances and where it would be appropriate to interfere with the order. A mere wrong order without anything more is not enough to attract this jurisdiction. He submits that in the facts of this case, it cannot even be said that the impugned order is in anyway wrong. He also relies on "P.L. Khatala v. K.C. Malhotra and Anr." wherein this Court has observed that the duty of the Court under Article 227 of the Constitution is to see whether the Trial Court has proceeded within its parameters and not to correct an error apparent on the fact, much less of an error of law. On this aspect he lastly relies on a Division Bench Judgment of this Court in C.W.P. No. 4196 of 1998 decided on 17.09.2002 "Delhi Administration and Ors. v. Ex. Constable Inderjit and Anr.", wherein the Division Bench has observed that "a mere wrong without anything more is not enough to attract jurisdiction of High Court under Article 227; the Supervisory jurisdiction conferred on High Court is limited to seeing that Tribunal functions within the limits of its authority and that its decisions do not occasion miscarriage of justice."

6. On merit his submission is that the real test to be applied while examine the application under Order 41 Rule 27 CPC by the appellate Court is to see whether the additional evidence is required to enable the Court to pronounce judgment. He relies on (2001) 1 SCC 309 "Mahavir Singh and Ors. v. Naresh Chandra and Anr." wherein the Court has held as under:

The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v. Rami Reddy , wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence. (see: The Municipal Corporation of Greater Bombay v. Lala Pancham ). But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires", which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. G.I.P. Railway 2nd (1907-08) 31 Bom 381 : 9 Bom LR 671: 34IA 115 (followed in ). It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessary to allow, the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh and Ors. v. Mehnga Ram in which the scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order XLI, Rule 27 CPC was considered. When this decision was cited before the High Court, the same was brushed aside the stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.

7. He submits that Mahavir Singh (supra) was a case dealing with the power of the High Court under Section 115, as it stood before amendment. The Supreme Court took exception to the interference by the High Court in the exercise of its discretion by the Appellant Court while dismissing an application under Order 41 Rule 27 CPC. This was because the Appellate Court was seized of the appeal and the entire matter was at large before it, which was not the case before the High Court while hearing the revision petition. He submits that the scope of enquiry by this Court under Article 227 is not wider that than under Section 115 CPC as it stood prior to amendment. He submits that, therefore, this Court should not interfere with the order of the Appellate Court when it has considered the present to be a fit case for allowing the application under order 41 Rule 27 CPC, while hearing the substantive appeal against the order of the learned ARC. He submits that the decision cited by the petitioner in Mahavir Singh (supra) has been noted by the Supreme Court in the aforesaid authority. He has also relied on two other decisions on the same aspect namely JT 2002 (96) SC 16 "Wadi v. Amilal and Ors.", wherein the Supreme Court has held that the requirement or need (for permitting additional evidence to be led in at the appellate stage) is that of the appellate court bearing in mind that the interest of justice is paramount. If it feels that pronouncing a judgment in the absence of such evidence would result in a defective decision and to pronounce an effective judgment admission of such evidence is necessary, Clause (b) enables it to adopt that course. Invocation of Clause (b) does not depend upon the vigilance or negligence of the parties for it is not meant for them. It is for the Court to resort to it when on a consideration of material on record it feels that admission of additional evidence is necessary to pronounce a satisfactory judgment in the case. In "Adil Jamshed Frenchman (dead) by LRs v. Sardar Dastur Schools Trust and Ors." the Supreme Court permitted the leading of additional evidence by the tenant by observing that the evidence was material and if substantiated, would have a material effect on the case of the landlord of their bona fide need of the suit premises. The tenant in that case had sought to adduce two documents, which came into existence after the passing of the eviction decree and the third document relating to correspondence of landlord with third parties.

8. Having considered the rival submission, I am not inclined to interfere with the impugned order passed by the learned ARCT. First and foremost, it cannot be said that the learned ARCT has not acted within the bounds of its jurisdiction while passing the impugned order. He was hearing the first appeal under Section 38 of the Delhi Rent Control Act, and was empowered to deal with an application under Order 41 Rule 27 CPC. Moreover, the impugned order cannot be said to be either perverse or even erroneous. The learned ARCT has appreciated the background in which the respondent desired to adduce additional evidence and the evidence that was sought to be led in. He has observed that the additional evidence would clarify the real contradictions between the parties and would throw light about the presence of Sh. Ashok Kumar in the suit premises. Admittedly, Sh. Ashok Kumar is working from the suit premises and, therefore, it is for the petitioner to explain the capacity in which Sh. Ashok Kumar is occupying the premises. It is, therefore, not within the scope of the jurisdiction of this Court to interfere with the impugned order passed by the Appellate Court in the exercise of its discretionary power while appreciating the need for permitting additional evidence to be led in.

9. The decisions cited on merit as aforesaid, by the respondent also show that the test laid down by the Supreme Court in Mahavir Singh (supra) applies in the facts of the present case. To be able to pronounce judgments satisfactorily, in my view, the learned ARCT has rightly concluded that it is necessary that the documents that the respondent desires to lead in evidence are permitted to be so led. No prejudice would be caused to the petitioner since her rights have been adequately protected in the impugned order. In view of the aforesaid, I dismiss this petition. It goes without saying that the petitioner shall not only be entitled to cross-examine the witnesses produced by the respondent, but shall also be entitled to lead further evidence to meet the additional evidence that may be led in by the respondent. Parties may appear before the concerned Rent Controller on 24.03.2008.

10. Trial Court record be returned back forthwith. Parties shall bound to comply with the time schedule fixed by the learned ARCT in the impugned order.