Himachal Pradesh High Court
Bhom Raj vs Shakuntla Mehta on 20 August, 2024
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Civil Revision No.168 of 2018
Reserved on 09.08.2024
Date of Decision 20.08.2024
Bhom Raj
.....Petitioner.
Versus
Shakuntla Mehta .....Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 yes
For the Petitioner: Mr. Bhupender Gupta, Sr.
Senior Advocate, with Ms. Rinki
Kashmiri, Advocate.
For the Respondent: Mr. B.M. Chauhan, Sr. Advocate,
with Mr. Amit Himalvi, Advocate.
Tarlok Singh Chauhan, Judge
The petitioner is the tenant who has been ordered to be evicted by both the learned authorities below and aggrieved thereby has filed the instant revision petition.
The parties shall be referred to as the 'tenant' and the 'landlady'.
2. The landlady filed a petition under Section 14 of the H.P. Urban Rent Control Act (for short the "Act") against the tenant regarding the premises i.e shop No. 4 in the second floor known as "Inder Palace Sanjauli, Shimla-6" situated between shops of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 20/08/2024 20:38:07 :::CIS2 Neutral Citation No. ( 2024:HHC:7031 ) M/s P.L. Palace and Decent Store (hereinafter refereed to as the demised premises). The demised premises is commercial in .
nature and its rent was Rs.1609/- per month inclusive of Municipal taxes. However, the electricity charges were to be paid by the tenant himself. According to the landlady, the demised premises was initially let out by Inder Dass Jaret on 27.5.1988 @ Rs. 1000/- per month to the tenant. However, later on, by way of compromise deed entered into between the owners before the learned Senior Sub Judge, Shimla in case No. 337/1 of 1997, the demised premised was transferred in the name of the landlady.
3. The eviction of the tenant was sought on the ground that he was in arrears of rent and secondly that the premises were bonafidely required by the landlady for use and occupation. It was pleaded that the landlady is a widow and is wholly dependent upon income of the rent fetched from the demised premises. She is not having any agricultural land and landed property and is unemployed and requires premises for tailoring purposes and also for ready- made garments as she was having diploma from NIFT. She has done a course in stitching and requires the premises in question for self use for carrying out business so as to meet out the financial expenses.
It was also pleaded by the landlady that she intends to start her ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 3 Neutral Citation No. ( 2024:HHC:7031 ) own business in the said shop most preferably relating to stitching and dress material including ready made garments.
.
Lastly, it was averred that the landlady is not occupying any non-residential building in the urban area except the present shop and further averred that she has not vacated any such non-residential building within five years of filing of the petition in the said urban area.
4. The tenant contested the petition by filing a reply wherein preliminary objections regarding maintainability, locus standi, the landlaldy having not approached the Court with clean hands, suppression of material facts, cause of action etc. were raised. However, the relationship of as that landlady and tenant and the rate of rent were not disputed. On merits, it was pleaded that the tenant was ready to make payment of arrears of rent but it was landlady who was not accepting the same as she wanted to increase the rent. It was further averred that husband of the landlady had been working in Government Department and as such she was receiving pension. She was also having orchard at Rai Ghat at Theog and at Kotgarh,which were sufficient to maintain her. It was also averred that the petition otherwise was being maintained by her unmarried son and therefore, the same be dismissed.
::: Downloaded on - 20/08/2024 20:38:07 :::CIS4 Neutral Citation No. ( 2024:HHC:7031 )
5. The learned Rent Controller on 07.01.2014 framed the following issues.
.
"1. Whether the respondent is in arrears of rent @1609/-
p.m. w.e.f 01.06.2012, as alleged? OPP
2. Whether the demised premises is bonafidely required by the petitioner for herself use and occupation for carrying her own business, as claimed? OPP
3. Whether the petitioner is not occupying any other non-residential building, as alleged? OPP
4. Whether the petition is not maintainable in the present form, as alleged. OPR
5. Whether the petitioner is having no locus standi to file present petition as alleged? OPR
6. Wheher the petitioner has not come to the Court with clean hands, as alleged? OPR
7. Whether the petition of the petitioner is liable to be dismissed on the ground of suppression of true and material facts, as alleged? OPR
8. Whether the petitioner has cause of action to file the present petition as alleged? OPR
9. Relief?"
6. After recording the evidence and evaluating the same, the learned Rent Controller partly allowed the petition by ordering the eviction of the tenant from the premises and also on the ground of arrears of rent with the condition that in case the arrears of rent are paid within the stipulated period of 30 days from the date of order to the landlady, then the tenant ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 5 Neutral Citation No. ( 2024:HHC:7031 ) would not be evicted from the demised premises on the ground of arrears of rent.
.
7. Aggrieved by the order of eviction, the tenant filed an appeal before the learned Appellate Authority and after about five months of filing of the appeal, an application for leading additional evidence was filed under Order 41 Rule 27 of C.P.C. though it ought to have been filed under Section 24 (3) of Act. Both the application and the appeal came up for consideration before the learned Appellate Authority and both came to be dismissed by the Appellate Authority vide order dated 24.5.2018.
8. Aggrieved by the orders passed by both the authorities below, the tenant has filed the instant petition.
9. It is vehemently contended by Sh. Bhupinder Gupta, learned Senior Advocate, assisted by Ms. Rinki Kashmiri, Advocate for the tenant that the learned Appellate Authority has committed grave illegality, irregularity in rejecting the application filed by the tenant under Order 41 Rule 27 of C.PC for leading additional evidence as the same was absolutely necessary for the just and proper decision of the case. It is further contended that both the Courts below have gone astray in holding the requirement of landlady to be bonafide, especially, when no evidence has been led by her regarding her ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 6 Neutral Citation No. ( 2024:HHC:7031 ) intention to open business in the demised premises. It is also contended that both the Courts below have failed to offer .
proper opportunity to the tenant to lead the evidence. Lastly, it is contended that the landlady is guilty of suppressing true and material facts before the Court as certainly from the record it is clear that the ingredients as pleaded ultimately were proved to be false.
10. On the other hand, Sh. B.M. Chauhan, Senior Advocate, assisted by Mr. Amit Himalvi, Advocate, for the landlady would contend that the application for leading additional evidence has rightly been rejected by the learned Appellate Authority as it failed to meet out the requirement of the Rule. It is further contended that once the tenant has not seriously questioned the bonafides of the landlady to start a business, it is too late in the day for the tenant to raise this question and it is denied that the landlady is guilty of suppressing true and material facts before the Court
11. I have heard the learned counsel(s) for the parties and have gone through the records of the case.
12. Before adverting to the merits of the case, the scope of revisional jurisdiction which this Court can exercise must be borne in mind. The Constitution Bench of the Hon'ble Supreme Court in Hindustan Petroleum Corporation ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 7 Neutral Citation No. ( 2024:HHC:7031 ) Limited vs. Dilbahar Singh(2014) 9 SCC 78 has laid down certain broad principles for exercise of revisional jurisdiction, .
which can be summarized as under:
(i)The term 'propriety' would imply something which is legal and proper.
(ii)The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v)The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC246.
(vi). The meaning of the expression "legality and propriety"so explained in Ram Dass vs. Ishwar Chander, (1988)3 SCC 131 was only to the extent that exercise of thepower is not confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to ::: Downloaded on - 20/08/2024 20:38:07 :::CIS
8 Neutral Citation No. ( 2024:HHC:7031 ) law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal .
evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality;
or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.
(viii) In exercise of its provisional jurisdiction High Court shall not reverse findings of fact merely because on re-appreciation of the evidence it may have a different view thereof.i
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
(x)Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
(xii) Incorrect finding of fact must be understood in the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 9 Neutral Citation No. ( 2024:HHC:7031 ) context of such findings being perverse, based on no evidence; and misreading of evidence."
.
13. In the aforesaid decision, the Hon'ble Supreme Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the Hon'ble Supreme Court in Rukmini Amma Saradamma vs. KallyaniSulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression"legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not.Finally the Hon'ble Supreme Court answered the reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the Court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority is ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 10 Neutral Citation No. ( 2024:HHC:7031 ) according to law and does not suffer from any error of law. A finding of fact recorded by court/authority below, .
if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above.However, to satisfy itself to the regularity, correctness,legality or propriety of the impugned decision or the or the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers."
14. The landlady appeared in the witness box as AW1 and deposed that the demised premises is owned by her and was given to the tenant on rent. The tenant was running hardware shop in the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 11 Neutral Citation No. ( 2024:HHC:7031 ) demised premises which was commercial in nature and the rent thereof was Rs.1609/- per month. The demised premises had been .
rented out by her father on monthly rent of Rs. 1000/- in the year 1988. Thereafter, in view of the compromise in the year 1997, the demised premises fell to her share. She bonafidely required the premises for running the business as she wanted to start the business of readymade garments in the demised premises. She further stated that she had done diploma in tailoring from NIFT and wanted to start the business of tailoring as well as readymade garments. In her cross examination, she deposed that her husband had superannuated from the service in the year 1994 and she was not getting pension of her husband. She is having one son, who was posted as JBT and had been married about 4 years ago. Her daughter was also married. She admitted that the copy of the compromise deed by which she had become owner of the demised premises had not been annexed nor the proof with regard to her professional qualification had been annexed with the petition. She denied that she was having orchards at Theog and Kotgarh. She admitted that she had no experience to run readymade garments shop.
15. As regards the tenant, he stepped into the witness box as RW-1 and deposed that the landlady had not been residing at Sanjauli and was residing at Theog, Thanedar and Kotgarh. Her son ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 12 Neutral Citation No. ( 2024:HHC:7031 ) was posted as Lecturer at Kumarsain and daughter had also been married. According to him, the entire outstanding rent has been .
paid. She was having other house in M.C. Shimla which she had given on rent and apart from that she was having orchards at Kotgarh and Theog and she was also having shops there from where she was getting rent.
16. Now, at this stage, it shall also be necessary to consider whether the application for additional evidence filed by tenant had been rightly rejected by the Appellate Authority. The application for additional evidence was preferred by the tenant on 21.6.2017, wherein it was averred that after passing of the eviction order, the tenant had come to know from the neighbours that the landlady had sold a portion of the shop vide sale deed No.347/2011 executed on 11.8.2011 and under these circumstances, the petition for bonafide requirement had been filed by the landlady prior to expiry of 5 years of transferring the property by virtue of the sale deed executed in the year 2011 and this aspect of the case clearly bars the landlady from initiating the proceedings for eviction against him. It was further averred that besides this, the landlady was having landed properties in Village Kihri Kotgarh and Bassa Mahog upon which the apple orchards were existing on the spot, which was fetching handsome income to her and in support of his contention, certified copy of the sale deed No.347/2011 executed on 11.8.2011 at Shimla ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 13 Neutral Citation No. ( 2024:HHC:7031 ) and copy of jamabandi of Mohal Kihri, Up Mohal Sathla, Mohal Bassa Mahog was appended.
.
17. It was also averred that prior to this, the applicant/tenant was not aware of these documents and it is only now that he obtained certified copies of these documents and therefore, under these circumstances, the requisite documents could not be produced before the learned Rent Controller at the time of filing of the reply.
18. In the reply to the application, it was averred that the documents have no relevance to the controversy in question and the application had been filed to mislead the Court. As regards the transfer of property prior to expiry of 5 years, it was averred that same was not applicable to the instant case for the reason that initially it was Inder Dass Jaret and his wife Champa Wati, who were owners of the building known as Inder Palace, Sanjauli. During their life time, both Inder Dass Jaret and his wife Champa Wati entered into an agreement to sell with Smt. Pushpa Gupta wife of Om Parkash Gupta on 16.4.1993 with respect to the sale of part of slab of first floor having area of 21.63 sq. meters of the under-
constructed building, built on the land comprised in Khasra No.58, measuring 203.44 sq. mtrs. situated at Up Mohal Sanjauli Bazaar, Shimla. As per the sale agreement, Inder Dass Jaret and his wife Champa Wati received full and final payment with respect to the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 14 Neutral Citation No. ( 2024:HHC:7031 ) said premises and they handed over the possession of the said part of the slab to Pushpa Gupta. After purchasing the said slab Pushpa .
Gupta constructed a shop on this part of the slab of the first floor.
However, due to unavoidable circumstances, the sale deed could not be registered in the name of Smt. Pushpa Gupta during life time of Inder Dass Jaret and Champa Wati. It was also averred that Inder Dass Jaret and Champa Wati by way of compromise decree passed by the learned Senior Sub Judge, Shimla vide case No. 337/1 of 1997 partitioned the building and as per the said compromise decree, shop No.4, in the second floor, known as Inder Palace, Sanjauli, Shimla, i.e., demised premises came in the ownership of the landlady. It was also averred that part of the slab which was sold by late Inder Dass and Champa Wati, to Pushpa Gupta remained joint in their name as the sale deed could not be registered during their life time. After the death of Inder Dass and Champa wati, the landlady, Durga Singh Jaret, Meena Ram Jaret, and Duni Chand Jaret inherited the aforesaid property which was joint in the name of Inder Dass Jaret and Champa Wati as the sale deed could not be registered in the name of Pushpa Gupta during the life time of Inder Dass Jaret and Champa Wati. It is thereafter that a formal sale deed with respect to the said property was specifically made by all the aforesaid four persons vide sale deed dated 11.8.2011 in favour of Smt. Pushpa Gupta. As such, the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 15 Neutral Citation No. ( 2024:HHC:7031 ) landlady had not acquired any premises by transfer. As regards the jamabandis, it was averred that these have no relevance.
.
19. The learned First Appellate Authority rejected the application by observing that the tenant was breathing hot and cold in the same breath as in the reply to the eviction petition the tenant had taken the plea that the landlady was having orchards at Raighat, Theog and Kotgarh. As such, the revenue record, which r to had been sought to be proved through this application could have easily been produced. Therefore, applicant/ tenant could not be permitted to place those documents before this Court.
20. So far as the sale deed is concerned, the First Appellate Authority observed that the sale deed was executed in pursuance to agreement executed between the purchaser and Inder Dass Jaret on 16.4.1993 and it has been mentioned in the application that Inder Dass Jaret had received full and final payment of Rs.55,000/- and handed over the possession of the said part of the slab and therefore, if this document is allowed to be produced then too the same does not fall within the definition of the document, which would help the authority to decide the matter effectively.
21. It would be apposite to quote Order 41 Rule 27 of the CPC, which reads as under:-
27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 16 Neutral Citation No. ( 2024:HHC:7031 ) entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if --
.
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
22. At the outset, it needs to be observed that Order 41 Rule 27 of C.P.C gives discretion to the Appellate authority but the discretion given to the Appellate authority under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule.
If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 17 Neutral Citation No. ( 2024:HHC:7031 ) improper exercise of discretion and the additional evidence so brought on record will have to be ignored.
.
23. Equally settled is the proposition that the additional evidence should not be permitted at the appellate stage simply in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. Of course, the position is different where the appellate authority itself requires certain evidence to be adduced in order to enable it to do justice between the parties. This provision does not entitle the Appellate authority to lead fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the Appellate authority is empowered to admit additional evidence and not for removing the lacunae in the case of the parties.
24. The Hon'ble Supreme Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193 has observed that Order 41 Rule 27 of CPC gives discretion to the appellate Court but the discretion given to the appellate Court under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 18 Neutral Citation No. ( 2024:HHC:7031 ) brought on record will have to be ignored and the case has to be decided as if such evidence is not existing.
.
25. In the case of STATE OF U.P. V. MANBODHAN LAL AIR 1957 SC 9012 the Hon'ble Supreme Court has laid down that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill-
in gaps. Of course, the position is different where the Appellate Court itself requires certain evidence to be adduced in order to enable it to do justice between the parties.
26. Again in MUNICIPAL CORPORATION OF GREATER BOMBAY V. LALA PANCHAM AND OTHERS, AIR 1965 SC 1008, the Hon'ble Supreme Court held that under Order 41 Rule 27 of CPC the Appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said 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 Appellate Court to let in fresh evidence at the Appellate stage where even without such evidence it can pronounce judgment in a case. This provision does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 19 Neutral Citation No. ( 2024:HHC:7031 ) words, it is only for removing the lacunae in the evidence that the Appellate Court is empowered to admit additional evidence and not .
for removing the lacunae in the case of the parties.
27. From the aforesaid catena of decisions on Order 41 Rule 27 of CPC, it can be said that at the appellate stage additional evidence can be entertained by the Appellate Court if there is some lacunae in evidence on record which requires clarification by additional evidence, may be, oral or documentary evidence and such additional evidence is necessary for pronouncing effective judgment by the Appellate Court and that it is not the right as may be, of the appellant or of the respondent to tender as of right additional evidence, oral as well as documentary, in appeal so as to fill in the lacunae in its case. Lacunae in the case of party can not be permitted to be removed by the Appellate Court by accepting additional evidence. On the other hand, if there is some lacunae in the evidence already on the record which requires clarification, in that event, certainly the Appellate Court can accept additional evidence.
28. In the case of Union Of India vs Ibrahim Uddin, (2010) 8 SCC 148, (Paras-36 to 41), the Hon'ble Supreme Court reiterated the principles of Order XLI Rule 27, C.P.C. laid down by it in its earlier decisions in the case of K. Venkataramiah v. A. ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 20 Neutral Citation No. ( 2024:HHC:7031 ) Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008;
.
Soonda Ram & Anr. v. Rameshwaralal & Anr., (1975) 3 SCC 698: AIR 1975 SC 479; Syed Abdul Khader v. Rami Reddy & Ors., (1979) 2 SCC 601 : AIR 1979 SC 553, Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798, State of U.P. v.
Manbodhan Lal Srivastava, AIR 1957 SC 912; S. Rajagopal v.
C.M. Armugam & Ors., AIR 1969 SC 101 and held as under:
"36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.
37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise ::: Downloaded on - 20/08/2024 20:38:07 :::CIS
21 Neutral Citation No. ( 2024:HHC:7031 ) a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge .
the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment.
38. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said 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 appellate 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. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence.
39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 22 Neutral Citation No. ( 2024:HHC:7031 ) party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected .
not to do so, cannot have it admitted in appeal.
40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment."
29. In the case of Malyalam Plantations Ltd. vs. State of Kerla, (2010) 13 SCC 487, (Para-17), the Hon'ble Supreme Court considered the scope of Order XLI Rule 27 C.P.C. and held as under:
"It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 23 Neutral Citation No. ( 2024:HHC:7031 ) relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not .
open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case."
30. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 of CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. This, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008;
Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 24 Neutral Citation No. ( 2024:HHC:7031 ) 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).
.
31. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party, on whom the onus of proving a certain point lies, fails to discharge the onus, he/she is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him/her and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).
32. Under Order XLI, Rule 27 of CPC, the Appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said 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 Appellate 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. In other words, it is only for removing a lacuna in the evidence that the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 25 Neutral Citation No. ( 2024:HHC:7031 ) Appellate Court is empowered to admit additional evidence. [Vide:
Lala Pancham (supra) ].
.
33. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal, as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).
34. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.::: Downloaded on - 20/08/2024 20:38:07 :::CIS
26 Neutral Citation No. ( 2024:HHC:7031 )
35. The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it .
is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.
36. After going through the application and bearing in mind the aforesaid exposition of law, it can conveniently be held that it does not fulfill the requirements of Order 41 Rule 27 of C.P.C much less the provisions contained in Section 24(3) of the Act.
37. The Appellate authority can allow a party to adduce additional evidence only where one establishes that he was unable to produce such evidence in the trial Court inspite of due diligence or best efforts on his part. According to dictionary meaning, "deiligence" means "constant and earnest effort to accomplish what is under-taken; persistent exertion of body or mind, care, caution. "Due diligence" thus would mean "such watchful caution and foresight as the circumstances of a particular case demands. A party to an appeal has no right to produce additional evidence unless he establishes to the satisfaction of the Appellate Authority/Court that in spite of due deligence, he could not produce ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 27 Neutral Citation No. ( 2024:HHC:7031 ) the evidence (oral or documentary) which is now sought to be produced in appeal.
.
38. Once, the tenant fails to establish due diligence, obviously no fault can be found with the order whereby the application for additional evidence was rejected by the learned Appellate Authority.
39. That apart, if the merits of the application are adverted to, it would be noticed that the specific case of the tenant even in reply to the eviction petition was that the landlady was having orchard in Raighat at Theog and at Kotgarh and also having shops at Theog and Kotgarh and had been receiving rent from there. Once that be so, obviously, then the tenant ought to have placed on record the revenue records which are easily available from the Lokmiter Kender.
40. As regards the sale deed, it needs to be noticed that it was the tenant himself, who had sought to produce the same in evidence and, thus, he would be bound by what is written in the sale deed in view of Section 92 of the Indian Evidence Act which lays down that the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of the document, have been proved according to the last section, ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 28 Neutral Citation No. ( 2024:HHC:7031 ) no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or the .
representatives in interest, for the purpose of contradicting, wherein adding to, or subtracting from its terms. While interpreting this provision the Hon'ble Supreme Court in (2000)10 SCC 636 in case titled as A. Abdul Rashid Khan (Dead)& others vs. P.A.K.A. Shahul Hamid and others observed as under:
"At the outset, we may consider the case of the Appellants, as contained in the additional written statement that it was understood between the parties that plaintiff would obtain the signatures of Respondent Nos. 2 and 3 and that the sale deed would be executed as one composite sale deed of the entire property. On the contrary, the case of the Respondent No. 1 is that Appellants undertook to get the signatures of their sisters. They are all plea and contentions, which are not born out of the agreement and sale. These are pleas by both the parties beyond the said written agreement. The law in this regard is well settled, in view of Section 92 of Indian Evidence Act, where any contract which is required by law to be reduced in writing, then no oral evidence or understanding to the contrary or what is apart from the said contract would be admissible in law. It is not in dispute in the present case, the agreement of sale was reduced in writing which ::: Downloaded on - 20/08/2024 20:38:07 :::CIS
29 Neutral Citation No. ( 2024:HHC:7031 ) was for an immovable property. Hence, these pleas, both of the Appellants and Respondent No. .
1, as aforesaid being beyond the written
agreement of sale cannot be taken into
consideration."
41. Hence, even on this ground no illegality much less irregularity can be said to have been committed by the Appellate Authority in rejecting the application filed by the tenant for leading additional evidence.
42. As regards the contention that no sufficient opportunity was granted to the tenant to lead evidence, suffice it is to say, that the record speaks otherwise. The case was fixed for recording the evidence on behalf of the tenant from 3.1.2015 onwards, and eventually, at once stage, when the tenant failed to lead evidence his right to lead evidence was closed. This constrained him to approach this Court by filing CMPMO No. 194 of 2016 which was allowed on 5.8.2016 on the basis of consent order whereby tenant was directed to appear before the learned Rent Controller on 17.8.2016 when a date was directed to be fixed for enabling the tenant to lead his entire evidence which was to be produced at his own responsibility. It was clarified in the order that no further opportunity would be granted to the tenant except when the ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 30 Neutral Citation No. ( 2024:HHC:7031 ) Court would be on leave. Accordingly this plea of the tenant is also rejected.
.
43. Even otherwise,it is by now well settled that the landlord is the best judge to determine as to what is his requirement and how best he should use the premises. He has complete freedom in the matter. It is no concern of the Court to dictate to the landlord how and in what manner he should live
44. In Ragavendra r to or utilize the premises which otherwise belongs to him.
Kumar versus Firm Machinery & Co. (2000)1 SCC 679, the Hon'ble Supreme Prem Court held that the landlord is the best judge of his requirement for his residential or business purpose and he has complete freedom in that matter. However,it has still to be remembered that the bonafide need of the landlord has to be genuine, honest and conceived in good faith.
45. In Bhupinder Singh Bawa versus Asha Devi (2016) 10 SCC 209, the Hon'ble Supreme Court held that the bonafide requirement has to be seen from the point of view of the landlady and can not be dictated by the tenant.
46. Thus, in view of the aforesaid discussion, no interference is warranted on the findings rendered by both the learned authorities below. There is neither any illegality nor any perversity in the same. The testimonies of the witnesses stand ::: Downloaded on - 20/08/2024 20:38:07 :::CIS 31 Neutral Citation No. ( 2024:HHC:7031 ) correctly and completely appreciated. The oral and documentary evidecne also stand considered in its right .
perspective and even the provisions of law have been correctly applied to the given facts and circumstances of the case.
47. Accordingly, there is no merit in this revision petition and consequently the same is dismissed along with all pending application(s) if any, leaving the parties to bear their own costs.
r to (Tarlok Singh Chauhan)
Judge
20th August, 2024
(veena).
::: Downloaded on - 20/08/2024 20:38:07 :::CIS