AGYA RAM SOOD Vs. SAMEER WASON

JUDGEMENT

(1.) By this petition, the petitioner has assailed an order dated 31st October, 2009 passed by the learned first appellate court (Rent Control Tribunal) dismissing an application under Order 41 Rule 27 read with Order VI Rule 17 CPC seeking permission to examine additional evidence at the stage of appeal and amendment of the written statement.

(2.) The petitioner in this application prayed for examination of Mr. Ashwani Kumar Dandona, Advocate to prove that along with the notice dated 17th August, 1998 served on behalf of the petitioner to respondent No.2, a pay order issued by Oriental Bank of Commerce for a sum of Rs.1,716/- as arrears of rent was also sent. The application was opposed by the respondents on the ground that Mr. Ashwani Kumar Dandona was the advocate of the petitioner during trial. The written statement was filed by the petitioner through the same advocate. The witness from Oriental Bank of Commerce wherefrom draft was got prepared was also examined and the evidence on this issue, whether the draft was sent or not, was led. The learned first appellate court observed that issue was amply clear that from the very beginning. The appellant knew that the pay order has not been encashed and in that circumstance, it was for him to lead necessary evidence before the Additional Rent Controller. The evidence which was not led at the stage of trial but was within the knowledge of the petitioner, cannot be permitted at the stage of appeal and the appellate court dismissed the application.

(3.) Under Order 41 Rule 27 CPC, the additional evidence can be allowed at the stage of appeal under following circumstances:-