Uttarakhand High Court
Smt. Baijayant Joshi vs Shri Deepak Chandra Gururani on 7 October, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2030 (M/S) of 2017
Smt. Baijayanti Joshi ....... Petitioner
versus
Deepak Chandra Gururani ....... Respondent
Mr. Siddhartha Sah and Mr. Chandresh Mamgain, Advocates for the
petitioner.
Mr. D. Barthwal, Advocate for the respondent.
U.C. Dhyani, J. (Oral)
By means of present writ petition, the petitioner seeks to quash the order dated 10.08.2017, passed by District Judge, Nainital, in rent control appeal no. 07 of 2016, Smt. Baijayanti Joshi vs Deepak Chandra Gururani. A further prayer has been made to allow the application of the tenant / petitioner filed under Order 41 Rule 27 CPC, as also the application filed under Order 6 Rule 17 CPC.
2) Purportedly in deference to paras no. 13 and 14 of the judgment dated 31.05.2017, passed by this Court in Writ Petition no. 1246 (M/S) of 2017, Smt. Baijayanti Joshi vs Deepak Chandra Gururani, petitioner filed application under Order 41 Rule 27 CPC, as also application under Order 6 Rule 17 CPC before the lower appellate authority. The said paras are reproduced here-in-under:
"13. Since this Court has mentioned above that the proceedings under the U.P. Act no. 13 of 1972, are decided on the basis of affidavit, counter affidavit, rejoinder affidavit etc., therefore, it will be in the fitness of things and in the interest of justice, if a direction is given to the Appellate Authority to consider entertaining the affidavit of the tenant/petitioner to substantiate her 2 statement on the question whether the construction is old one or new one? Needless to say that if such affidavit is entertained and taken on record, the respondent will also be given opportunity to rebut the same. Thereafter, learned Appellate Authority shall proceed to decide rent control appeal in accordance with law.
14. It is made clear that this Court has not given a finding as to whether the construction is new one or old one and the provisions of U.P. Act no. 13 of 2017 are applicable or not to the building in question."
3) Application under Order 41 Rule 27 CPC was filed on behalf of the applicant/petitioner (Annexure 14 to the writ petition), which was dismissed by the Appellate Authority, vide order dated 10.08.2017. Application under Order 6 Rule 17 CPC was also filed, which met the same fate. Said order is under challenge in present writ petition.
4) Learned counsel for the landlord respondent submitted that Ibrahim Uddin's case (infra) is not applicable in the instant case, in view of following observation of the Hon'ble Apex Court made in para 48 of said judgment. Said para is reproduced here-in-below for convenience:
"48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application 3 filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.
5) It is, therefore, the contention of learned counsel for the landlord respondent that application under Order 41 Rule 27 CPC has been filed before the Appellate Authority at a belated stage.
6) Secondly, it is contended that the reasons assigned for filing such an application are also not within the four corners of Order 47 Rule 27 CPC, inasmuch as the tenant/appellant/petitioner has to show that despite due diligence he could not produce the evidence, as the evidence was not within his knowledge when decree was passed against him.
7) It is the submission of learned counsel for the respondent that no such reasons have been assigned by the appellant/petitioner before the Appellate Authority.
8) Learned counsel for the respondent also placed reliance upon para 40 of the decision rendered by Hon'ble Apex Court in Ibrahim Uddin's case (infra) to argue that 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 does not constitute a substantial cause within the meaning of this Rule.4
9) Learned counsel for the respondent also submitted that this Court while deciding writ petition no.
1246 (M/s) of 2016 never permitted the appellant/petitioner to file an application under Order 41 Rule 27 CPC or under Order 6 Rule 17 CPC.
10) Hon'ble Apex Court in paras 49 and 52 of the judgment rendered in Union of India vs Ibrahim Uddin and another, (2012) 8 SCC 148, has observed as under:
"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 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 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 5 pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
11) The Hon'ble Apex Court has, therefore, ruled that an application under Order 41 Rule 27 CPC should 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. 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.
12) The same has happened in the instant case. Although learned Appellate Authority has dismissed the application under Order 41 Rule 27 CPC filed on behalf of the tenant/appellant/petitioner, but, according to the aforesaid decision of Hon'ble Apex Court, the proper time for consideration of such an application was at the time of hearing of appeal on merits, which has not been done in the instant case.
13) In view of the aforesaid discussion, the matter is remitted back to the Appellate Authority to consider the application of the tenant/appellant/petitioner under Order 41 Rule 27 CPC only at the time of hearing of appeal on merits.
614) As far as the rejection of application under Order 6 Rule 17 CPC is concerned, that has now become inconsequential and, therefore, prayer made against rejection of such application is uncalled for and the same is dismissed.
15) Writ petition thus stands disposed of.
16) Needless to say that the Appellate Authority while deciding the application of the appellant/petitioner under Order 41 Rule 27 CPC shall go into the bona fide, admissibility and maintainability of such an application at the time of deciding the same along with the rent control appeal.
17) An endeavour shall also be made by the Appellate Authority to decide the rent control appeal no. 07 of 2016, Smt. Baijyanti Joshi vs Deepak Chandra Gururani, as early as possible, without granting unnecessary adjournments to either of the parties.
[All pending applications also stands disposed of.] (U.C. Dhyani, J.) Dt. October 07, 2017.
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