Allahabad High Court
Ram Chandra And Another vs Bipin Kumar Agnihotri on 24 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1236, (2019) 10 ADJ 412 (ALL), (2019) 137 ALL LR 375, (2019) 2 RENCR 678, (2019) 3 ALL RENTCAS 400, (2019) 5 ALL WC 4427
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 5 Case :- WRIT - A No. - 9936 of 2019 Petitioner :- Ram Chandra And Another Respondent :- Bipin Kumar Agnihotri Counsel for Petitioner :- Ramendra Asthana Counsel for Respondent :- Bhanu Bhushan Jauhari, Pramod Kumar Srivastava Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri Ramendra Asthana, learned counsel for the tenants/petitioners and Sri Pramod Kumar Srivastava, learned counsel for the landlord-respondents.
2. Briefly stated facts of the present case are that undisputedly the respondent is the owner and landlord of the disputed building which is part of T.P. No.353, Sadar Bazar, Shahjahanpur. This portion was let out to the ancestor of the petitioner probably in the year 1963. The tenancy was succeeded by the petitioners which is for a monthly rent of Rs.200/-. The respondent-landlord is an Advocate by profession. His residence is undisputedly in a narrow lane where clients find it difficult to approach him. He wants to establish his chamber at the suitable place. The disputed property is situate on the main road. To establish his chamber/office the respondent-landlord filed an application dated 01.07.2011, under Section 21(1)(a) of U.P. Act No.13 of 1972 for release of the disputed accommodation. Parties led their evidences both oral and documentary. The release application being P.A. Case No.2 of 2011 (Bipin Kumar Agnihotri Vs. Ram Chandra and another) was allowed and the case was decreed by judgment dated 27.02.2018, passed by Civil Judge (S.D.), Shahjahanpur. Aggrieved with this judgment, the tenants-petitioners filed a P.A. Civil Appeal No.19 of 2018 (Ram Chandra and another Vs. Bipin Kumar Agnihotri), which has been decided by the impugned judgment dated 16.4.2019, passed by the District Judge, Shahjahanpur. During pendency of the aforesaid appeal, the tenants-petitioners moved an application 14 Ga dated 15.10.2018, under Order XXVI Rule 9 C.P.C. for issue of commission to find out the distance in meters between the residential house of the respondent-landlord and the disputed house and the length and width of the disputed house and name of tenants. This application was rejected by the appellate court by District Judge, Shahjahanpur by order dated 6.12.2018, against which the tenants-petitioners filed Writ - A No. 2256 of 2019 (Ram Chandra and another Vs. Bipin Kumar Agnihotri) which was disposed of by order dated 13.02.2019, observing as under:-
"Accordingly, without examining the validity of the impugned order at this stage, the petition is disposed of with liberty reserved in favour of the petitioners to challenge the impugned order alongwith the final order passed in appeal."
3. Now, the tenants-petitioners has filed the present writ petition under Article 226 of the Constitution of India praying for the following relief:-
"(a) call for record of the case and issue a writ, order or direction in the nature of certiorari quashing judgments and orders dated 16.04.2019 (contained in Annexure No.13 to the writ petition passed by the learned District Judge, Shahjahanpur, dismissing with costs P.A. Civil Appeal No.19 of 2018 (Ram Chandra and another Vs. Vipin Kumar Agnihotri) and 27.02.2018 (contained in Annexure No.7 to the writ petition passed by the learned Prescribed Authority/Civil Judge, Senior Division, Shahjahanpur allowing Release Application under Section 21 of the U.P. Act No.XIII/1972 registered as P.A. Case No.02 of 2011 (Vipin Kumar Agnihotri Vs. Ram Chandra and another)."
4. Sri Ramendra Asthana, learned counsel for the tenants/petitioners submits as under:-
(i) The provision of Order XLI Rule 27 and Order XXVI Rule 9 C.P.C. have not been followed by the court below while rejecting the application for commission (paper No.14 Ga) by order dated 06.12.2018. The application for issue Commission could have been decided only at the time of final hearing of the appeal and not otherwise. In support of his submissions, reliance is placed on the judgment of New Meena Sahkari Awas Samiti Ltd. Lko Thru Its President Vs. Addl. District Judge, Court No.2, Lucknow & Ors. 2016(2) ARC 133 (Para 34) and Jaipal Singh Vs. Smt. Sudha Rani 2018 (3) ARC 800 (para 11).
(ii) Release application does not disclose that the applicant possess sufficient finance for construction of the disputed building which was alleged to be in a dilapidated condition.
(iii) While recording the finding of bonafide need the court below has failed to consider the aspects as provided under Section 21(1)(b) of U.P. Act No.13 of 1972 read with Rules 17 of the Rules. The landlord-respondent has alleged in his release application that the disputed property is in a dilapidated condition.
5. Sri Pramod Kumar Srivastava, learned counsel for the landlord-respondents supports the impugned judgment.
6. I have carefully considered the submissions of learned counsels for the parties.
7. The first submission of learned counsel for the tenants-petitioners has no merit. It is undisputed that the release application was filed in the year 2008 and it was allowed by the impugned judgment dated 27.2.2018. Before the Prescribed Authority both the parties have led number of documentary evidences including large number of photographs to demonstrate the location of the disputed property and the building where the respondent is residing. No application for issue of commission was moved before the Prescribed Authority. After about 8 years of the institution of the release application and that too at the appellate stage the tenants-petitioners moved an application for issue of commission in which even no cause has been shown for issue of commission. The only reason stated in the aforestated application dated 16.10.2018 is in paragraph 2, which is reproduced below:-
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8. From perusal of the application for commission (paper No.14 Ga) it is clear that the tenants-petitioners has even completely failed to disclose any reason to justify his demand for issue of commission. The aforesaid application was rejected by the appellate court by order dated 06.12.2018 in which detailed reason has been recorded for rejection. The appellate court has also recorded a finding that in the release application the boundaries of the disputed house and the names of tenants are mentioned. The appellate court also observed that 25 photographs supported by an affidavit were filed by the landlord-respondent before the Prescribed Authority with respect to both the houses to show its on spot situation. The appellate court also observed that the tenants-petitioners has filed the application for issue of commission only to delay the disposal of appeal. Order XXVI Rule 9 C.P.C. provides for issue of commission to make local investigation if in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, then the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
9. The legal position regarding issue of commission has been well settled. The power conferred upon the Court for issue of Commission under Section 34(1) (c) of U.P. Act No. 13 of 1972 read with order XXVI Rule 9 C.P.C. is discretionary. The local inspection or Commission by Court is made only in those cases where evidence have been led by the parties, but the Court is not able to arrive at a just conclusion either way or where the Court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or commission. Such inspections are made to appreciate the evidence already on record and the Court is not expected to visit the site for collecting evidence.
10. In the case of Avinash Chandra Tiwari Vs. ADJ 2010(2) ARC 84 the Lucknow bench of this court referred to several decisions on the question of issue of commission and held as under:
"11. To go for local inspection or issue of commission for the proper disposal of the controversy pending is a sole progrative of the Court to decide whether to move the same or not. Hence, it is late in a day to quarrel that it is not mandatory on the part of the Court to issue commission. When an application is moved for the said purpose. The local inspection or commission by court is made only in those cases where on the evidence led by the parties, Court is not able to arrive at a just conclusion either way or where the court feels that there is some ambiguity in the evidence which can be clarified by making local inspection or commission. Local inspection or issue a commission by the court cannot be claimed as of right by any party. Such inspections are made to appreciate the evidence already on record and Court is not expected to visit the site for collecting evidence. (See Randhir Singh Sheoran Vs. 6th Additional District Judge, 1997(2) JCLR 860 and Radhey Shyam Vs. A.D.J., Court no. 13, Lucknow and others, [2010(2) A.D.J., 758].
12. Further, in the present case as stated herein above, the opposite party no. 1 on the basis of the material facts on record given a categorical finding that at this stage, it is not necessary to issue commission, accordingly, rejected the application for issue of the Advocate/Commissioner, moved by the petitioner. Further the court below held that if the application for issue of commission is allowed the same will linger the matter unnecessary, as appeal is pending since the year 2006. The said view taken by the opposite party no. 1 is in accordance with law as laid down by this Court in the case of Sonpal Vs. 4th Additional District Judge, Aligarh and others, 1992 2 ARC, 596.
13. In the case of Smt. Shamshun Nisha Vs. Ist Additional District Judge, Lucknow and others 1992, (1) ARC page 423, it is held as under :
"By means of the present writ petition, the petitioner challenges the order, dated 13.05.1991, passed by Ist Additional District Judge, Lucknow, contained in Annexure No. 6 by which the petitioner's request for local inspection was rejected by the appellate Court. The appellate Court pointed out that the petitioner had been given sufficient opportunity to rebut the evidence of the expert. However, the fact is not disputed that the appeal is still pending and in appeal only an application for local inspection of the site by the Advocate Commissioner has been rejected. Therefore, in my opinion, the said order cannot be challenged in the writ petition."
14. So far as, the judgment which is relied upon by the learned counsel for the petitioner, the M/s Harihar Sugandh (p) Ltd, Anandi Das Kannauj through it's M.D. Vs. Add. Civil Judge (Senior Division), Court no. 3, Kanpur Nagar [2004(57) ALR 224], (435) Special Duty Collector LA.(Supra) and Radheshyam Rastogi (supra) are not applicable in view of the peculiar facts and circumstances of the instant case.
15. Further in the case of Anandi Das Kannauj through it's M.D. Vs. Add. Civil Judge (Senior Division), Court no. 3, Kanpur Nagar [2004(57) ALR 224], it was held that if an application for issue a commission is rejected then, the same can not be res-judicata for moving another application for issue of the commission for collection of evidence, and in the case of Okhla Enclave Plot holder Welfare Association Vs. Union of India and Others(2009 LAR 51(SC) the Hon'ble Supreme Court after hearing and examining issues involved in the present case deemed fit to direct appointment of Commissioner, however, in the present case the court below on the basis of the material evidence on record, come to the conclusion that there was no necessity for issue of the commission so the petitioner cannot derive any benefit form the above said judgments.
16. Accordingly, as it is a sole domain of the Court to issue a commission or not and the local inspection or commission can not be claimed as a matter of right by a party, so there is neither any illegality nor infirmity in the order under challenge.
17. For the foregoing reason, the present writ petition filed by the petitioner lacks merit and is dismissed."
11. The judgement in the case of New Meena Sahkari Awas Samiti Ltd. Lko Thru Its President (supra) relied by learned counsel for the tenants-petitioners is distinguishable on facts. In paragraph 7 of the aforesaid judgment as reported in ARC it has been noted that it was a suit for permanent injunction and the dispute was as to whether the property in dispute is existing over Khasra No.222 as claimed by the petitioner or over Khasra Nos.221 and 223 as claimed by the respondent/defendant nos.2 & 3. There was no dispute of the ownership of the concerned parties with respect to the aforesaid three Khasra plots. In that situation the issue of commission was found to be necessary. Such are not the facts of the present case. The judgment in case of Jaipal Singh (supra) is also distinguishable on facts which is evident from the fact noted in paragraph 7 of the judgment. That was the case where the application moved by the petitioner of that petition was referable to Order XLI Rule 27 C.P.C. Hear is the case where the application has been moved by the tenants-petitioners at the appellate stage under Order XXVI Rule 9 C.P.C. and that too without disclosing any relevant cause to ask for issue of commission.
12. In the case Malyalam Plantations Ltd. vs. State of Kerla, (2010) 13 SCC 487, (Para-17), 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 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."
(Emphasis supplied by me)
13. In the case of Union Of India vs Ibrahim Uddin, (2010) 8 SCC 148, (Paras-36 to 41), 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. 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 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 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."
(Emphasis supplied by me)
14. Thus, the first submission of learned counsel for the tenants-petitioners with respect to the issue of commission deserves to be rejected and is hereby rejected. The order dated 06.12.2018, passed by the appellate court rejecting the application 14 Ga for issue of commission does not suffer from any error of law or facts.
15. The 2nd and 3rd submission of learned counsel for the tenants-petitioners has also no merits. Reasons are that the release application was filed by the landlord-respondent under Section 21(1)(a) of U.P. Act No.13 of 1972 on the ground of his bonafide need. Undisputedly, the landlord-respondent is an Advocate by profession and his residence is in a narrow lane and away from main road. The disputed property is situated on the main road. He wants to establish his office at a suitable place for the purposes of his legal profession. He established his bonafide need. Both the courts below have recorded concurrent finding of fact based on consideration of relevant evidences on record that the landlord-respondent is in bonafide need of the disputed property and the comparative hardship is in his favour. These findings of fact can not be interfered with writ jurisdiction under Article 226 of the constitution of India. No perversity in the findings of fact recorded in the impugned judgment could be pointed out by learned counsel for the tenants-petitioners. Even no argument has been raised before me in this regard.
16. For all the reasons aforestated, I do not find any merit in this petition. Consequently, the writ petition fails and is hereby dismissed with costs.
17. After the judgment was dictated in open court, Sri Ramendra Asthana, learned counsel for the tenants/petitioners states on instructions that the tenants-petitioners undertake to vacate the disputed house and handover its vacant and peaceful possession to the landlord-respondent on or before 15.10.2019. He further states on instruction that the tenants-petitioners shall deposit the entire decretal amount, if any, and an additional sum of Rs.10,000/- and shall also submit an undertaking with regard to the vacating and handing over possession to the disputed property to the respondent-landlord on or before 15.10.2019, within three weeks before the court below and in that event the tenants-petitioners may not be evicted till 15.10.2019.
18. Sri Pramod Kumar Srivastava, learned counsel for the landlord-respondent accepts the statement made on behalf of tenants-petitioners but submits that in the event the conditions are not satisfied within the stipulated period then the protection may not be extended to petitioner and in the event the conditions are complied with but vacant possession of the disputed property is not handed over by the tenant-petitioner to the landlord-respondent on or before 15.10.2019 then in that event the tenants-petitioners may be directed to pay sum of Rs.1000/- per day for each day of default in vacating and handing over of vacant and peaceful possession to the landlord-respondent.
19. Considering the statement made by learned counsels for the parties as noted above, it is provided that in the event the tenants-petitioners submit an undertaking to the aforesaid effect before the court below within three weeks from today and also deposit the entire decretal amount and an additional sum of Rs.10000/- within the same period then in that event the tenants-petitioners shall not be evicted from the disputed property till 15.10.2019. In the event the conditions are not satisfied then the protection as given above to the tenants-petitioners shall not continue. In the event the conditions of the aforesaid undertaking are complied with but tenants-petitioners do not vacate and hand over vacant and peaceful possession of the disputed property to the landlord-respondent on or before 15.10.2019 then without prejudice to other consequences which may follow, the tenants-petitioners shall also pay a sum of Rs.1000/- per day for each day of default in not vacating and not handing over the vacant and peaceful possession to the landlord-respondent after 15.10.2019.
Order Date :- 24.7.2019/vkg