Unknown vs Ibrahim
2021 Latest Caselaw 3721 UK

IN THE HIGH COURT OF UTTARAKHAND
                      AT NAINITAL
     ON THE 20TH DAY OF SEPTEMBER, 2021
                            BEFORE:
     HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       Writ Petition (M/S) No. 1744 of 2021
BETWEEN:

Shyam Sunder Katariya.                           ....Petitioner
      (By Mr. Neeraj Garg, Advocate)
AND:

Sumit Grover & another.                          ...Respondent
       (By Mr. Siddhartha Sah, Advocate)




                         JUDGMENT

This is tenant's petition under Article 227 of the Constitution of India against the order dated 17.08.2021 passed by IVth Additional District Judge, Dehradun in Rent Control Appeal No. 05 of 2020. By the said order, petitioner's applications for taking additional evidence on record and also for issuance of Commission were rejected.

2. Learned counsel for the petitioner submits that the order impugned is unsustainable for the simple reason that learned Appellate Court considered these applications before reaching the stage of final hearing. He has placed reliance upon paragraph no. 49 & 52 of the judgment rendered by Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim

Uddin and another reported in (2012) 8 SCC 148, which are reproduced below:-

"49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.

52. Thus, from the above, it is crystal clear that an 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 the 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, the 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."

3. Mr. Siddhartha Sah, learned counsel appearing for the respondents submits that these applications were filed by the petitioner in order to delay disposal of the appeal. He has also

drawn attention of this Court to an order dated 08.04.2021 passed by Coordinate Bench of this Court in Writ Petition (M/S) No. 850 of 2021, whereby learned Appellate Court was directed to decide the appeal within the time stipulated in Rule 7(7) of Uttar Pradesh Urban Building (Regulation of Letting, Rent & Eviction), Rules, 1972. He thus submits that learned Appellate Court was justified in rejecting petitioner's applications, which were filed as a dilatory tactics. He further submits that application for issuing Commission filed by the petitioner was rejected by learned Prescribed Authority in original proceedings, therefore, the rejection order would operate as constructive res-judicata.

4. Mr. Neeraj Garg, learned counsel appearing for the petitioner submits that principle of Constructive Res-judicata will not apply in view of the provisions contained in Order 41 Rule 27(a) read with Order 26 Rule 10 C.P.C. Thus, he submits that since learned Prescribed Authority had wrongly refused to admit evidence in the original proceedings, therefore, petitioner is entitled to adduce additional evidence at the appellate stage.

5. It is an admitted position that stage of final hearing has not arrived as yet before learned Appellate Court. Therefore, on this short point alone, the impugned order 17.08.2021 is set-aside. The matter is remitted back to

learned Appellate Court to consider both the applications filed by the petitioner at the stage of final hearing, in terms of law laid down by Hon'ble Apex Court in the case of Union of India Vs. Ibrahim Uddin and another (supra).

6. Accordingly, the writ petition is allowed. However, learned Appellate Court shall consider the applications filed by the petitioner independently, untrammelled by any observation made in this order. Learned Appellate Court shall also adhere to the timeline fixed by the Coordinate Bench of this Court.

(MANOJ KUMAR TIWARI, J.) Navin