RAM BILAS, SON OF GANGA PRASAD, RESIDENT OF VILLAGE TIKWAPUR, PARGANA, TAHSIL AND DISTRICT SITAPUR Vs. CHURAEE AND OTHERS.

JUDGEMENT

(1.) This is a special appeal from the judgment of brother Nigam by which the writ petition of respondents 1 and 2 under Art. 226 has been allowed.

(2.) At the stage of second appeal preferred by the present appellant under Sec. 11 of the U.P. Consolidation of Holdings Act, as it stood prior to its conduct by U.P. Act 8 of 1963, the Deputy Director received additional evidence at the instance of the present appellant. This additional evidence consisted of a certified copy of a previous statement of Churaee respondent no. 1 said to have been made in an earlier proceeding before Panchayati Adalat in regard to the land in dispute in that second appeal. Respondents 1 and 2, aggrieved by the order passed in second appeal, went in revision under Sec. 48 of the unamended Act and the same was dismissed. It was thereupon that they instituted the petition giving rise to this appeal praying that the orders passed in second appeal and in revision be quashed mainly on the ground that the Deputy Director had no jurisdiction to receive additional evidence at the stage of second appeal and even if he had he could not utilise it for the purpose of the decision without affording a chance to respondents 1 and 2 to rebut the same. Learned Single Judge expressed doubt in regard to the contention that the Deputy Director had no jurisdiction to receive additional evidence at the stage of second appeal. He however upheld the other contention raised on behalf of respondents 1 and 2 that the additional evidence raised at the stage of second appeal could not be utilised without affording a chance to respondents 1 and 2 to rebut the same. Accordingly he allowed the petition and quashed the orders passed in second appeal and revision. It is in these circumstances that this special appeal has been instituted.

(3.) We have heard learned counsel for the appellant. His main contention is that the view taken by the learned Single Judge that no opportunity was afforded to respondents 1 and 2 to rebut additional evidence received at the stage of second appeal is unjustified. He points out that after the previous statement of respondent no. 1 was received in evidence the Deputy Director actually examined respondent no.1 and gave him an opportunity to explain the statement which was inconsistent with the stand taken by him before the consolidation authorities. As such the argument is that there is no basis for holding that the additional evidence was received without letting respondents 1 and 2 an opportunity to rebut the same. A copy of the statement recorded by the Deputy Director after the receipt of additional evidence is annexure 5 to the petition. Having gone through it we are satisfied that there has been no compliance with the requirement of Sec. 145 of the Evidence Act. It does not disclose that the attention of respondent no. 1 was pointedly drawn to the particular statement which appear to be inconsistent with the stand taken before the consolidation authorities. In the absence of such an opportunity afforded to respondent no. 1 the previous statement should not have been allowed to be proved. However, be that as it may, the fact remains that but for the examination of respondent no. 1 alter the receipt of the additional evidence no attempt was made on the part of the Deputy Director to give him an opportunity to rebut the additional evidence. It is immaterial whether or not respondents 1 and 2 actually moved an application for the purpose or orally sought that time be given to them to rebut the additional evidence. On principle whenever additional evidence is received at the instance of a party, the other party, unless it expressly waives it, must be given an opportunity to rebut the same. So we see nothing wrong in the view taken by the learned Single Judge that the additional evidence should not have been relied upon for giving a decision in second appeal against respondents 1 and 2 without letting them an opportunity to rebut the same.