SHRI DURGA BHAGWATI INDUSTRIES Vs. OM PRAKASH LOHIA

JUDGEMENT

(1.) Challenge in this writ petition has been made to two orders of the appellate court dated 4.4.2006 and 5.4.2006. By order dated 4.4.2006, the appellate court refused to extend the stay of the order of the Prescribed Authority and by order dated 5.4.2006, the application of tenants-petitioners to file certain additional evidence has been rejected.

(2.) The undisputed facts are that respondents-landlords filed an application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 (for short the Act) for release of the accommodation in dispute. The Prescribed Authority vide order dated 23.1.2006 allowed the said application. Feeling aggrieved, tenants-petitioners filed an appeal. On 21.2.2006 when the appeal came up for hearing the counsel appearing for landlords-respondents gave an undertaking before the Appellate Court that if some early date for disposal of appeal is fixed they will not put the order of the Prescribed Authority in execution. The Appellate Court fixed 1.4.2006 for final hearing. On 1.4.2006 the case was adjourned to 4.4.2006 and the undertaking given by the respondents-landlords was extended. On 4.4.2006, the Appellate Court directed the record of the trail court to be summoned and fixed 5.4.2006. The application for extension of stay moved by the tenants- petitioners was objected by the respondents-landlords on the ground that undertaking was given on the condition that the appeal may be heard on 1.4.2006. Now since tenants-petitioners have moved an application for taking additional evidence on record, which will delay the disposal of the appeal as such, the stay should not be extended. The appellate court rejected the application for extension of stay and fixed 5.4.2006. On 5.4.2006 the application filed by the tenants-petitioners for taking additional evidence was rejected. I have heard Sri Ravi Kiran Jain learned senior advocate assisted by Sri V.K. Agarwal for the petitioners and Sri S. N. Singh for the contesting respondents. It has been stated by Sri S.N. Singh that he does not propose to file any counter affidavit. With the consent of the learned counsel for the parties the writ petition is being finally disposed of. It has been urged by the learned counsel for the petitioners that the application filed by the petitioners for taking additional evidence has been rejected solely on the ground that the said documents relate to the period prior to the decision of the trial court and the application has been filed with a view to delay the proceedings without even considering the reason mentioned in the application for not filing the documents at the stage of trial. In reply, it has been contended that the documents were very much in existence during the pendency of the proceedings before the trial court but were not filed there and these documents being filed at the appellate stage are not liable to be accepted and the application has rightly been rejected by the appellate court. I have considered the arguments advanced by the learned counsel for the parties and perused the record.

(3.) The application to take additional evidence on record has been annexed as Annexure-6 to the writ petition. It has been stated in the application that documents sought to be filed as additional evidence to demonstrate that Sri Amit Kumar Lohiya son of landlord/respondent no. 2 was employed with Lohiya Eastern Software System Ltd as a Software Engineer and Sri Chand Prakash Lohiya , landlord/respondent no. 5 is residing in House No. 1639, Sector 16 Daulatabad (Faridabad) could not come to the knowledge of the petitioners during the pendency of the proceedings before the Prescribed Authority. With regard to the additional evidence to show that tenants/petitioners tried to obtain alternative accommodation it has been stated that the same were misplaced as such could not be filed before the Prescribed Authority. A perusal of the order dated 5.4.2006 goes to show that the application has been rejected on the ground that additional evidence sought to be filed by the petitioners were in existence prior to the decision of the Prescribed Authority and since none of the said documents are of the date after the decision of the Prescribed Authority and the petitioners have failed to disclose specifically when the said documents came to his knowledge. Another reason recorded by the appellate court for rejecting the application is that tenants/petitioners had made effort to file evidence before the Prescribed Authority after the stage of evidence was over and the same was rejected vide order dated 23.1.2006. Under Section 10(2) of the Act the Appellate Authority while hearing appeals against the order passed under Section 8, 9 and 9-A of the Act is empowered to take additional evidence. By virtue of Section 22 of the Act dealing with the provisions of appeals against an order made under Section 21 of the Act, the provisions of Section 10 of the Act have been mutatis mutandis applied. Thus the Appellate Authority while hearing an appeal under Section 22 of the Act is empowered to receive additional evidence. Section 34 of the Act confers on the Prescribed Authority or the Appellate Authority certain powers of civil courts prescribed by the Code of Civil Procedure in respect of certain matters enumerated therein. Rule 22 of the Rules framed under the Act apart from other powers also confers power exercisable by a civil court under Section 151 and 152 C.P.C. to make an order to secure the ends of justice. However, no guidelines have been laid down either under the provisions of the Act or Rules framed thereunder to be followed by the Appellate Court while receiving additional evidence. The provisions of Order 41 Rule 27 CPC which apply to civil court have not been made expressly applicable to the proceedings under the Act. However mere absence of a specific provision will not necessarily mean that statute intended to prohibit the application of Order 41 Rule 27 or at least the principles underlying the said provision. In the case of Narsingh Ram versus Mangal Pandey ILR 5 Alld. 163, it has been observed by Hon'ble Mahmood, J. as follows;