Christ High School and Nursery through its Principal vs Bharbhagwan Singh

H.S. Bedi, J.

The petitioner who is the tenant is aggrieved by the fact that the impugned order was extremely vague and did not detail the additional evidence that has thereby been permitted and that at the appellate stage the case set up by the landlord has been changed.

As against this, Mr. Suvir Sehgal, learned counsel appearing for the caveatorlandlord, has urged that in the application filed for producing additional evidence two fresh facts were sought to be proved before the trial Court; firstly that the annexe portion of the demised premises was not rented out to the petitioner as it was already on rent with Messars Formic India limited as evidenced by the lease deed executed in the year 1972 and, secondly, that after the filing of the ejectment application the children of the landlord i.e. Harpreet Singh Bassi and Inderpreet Bassi had been admitted to Classes 6th and K.G. in Vivek Public School, Sector 38, Chandigarh and Yadavindra Public School and these additional facts were relevant for determining the personal necessity of the landlord.

After hearing the learned counsel for the parties, I am of the opinion that the application aforesaid needs to be allowed only qua the second prayer. It was the positive case of the landlord before the Rent Controller that the tenant in the Annexe portion was Messrs Modern Surface and Insulation Limited. By seeking to lead additional evidence to prove that it was in fact Messrs Formica India Ltd., and not Messrs Modern Surface and Insulation Limited, the landlord has sought to change the entire nature of the controversy. This cannot be permitted. Order 41 Rule 27 of the Code of Civil Procedure provides that in an appeal the party concerned shall ordinarily not be entitled to produce additional evidence except in the situations covered by subrules (aa) and (b) of the Rule. Subrule (aa) specifically provides that additional evidence can be permitted if the party concerned could establish that the neglect to produce the evidence was despite the exercise of due diligence and that such evidence was not within its knowledge or could not after the exercise of due diligence be produced before the trial Court at the time when the decree appealed against was passed. It is the case of the landlordrespondent that the lease deed was executed between him and the tenantMessers Formica India Limited way back in the year 1972 and it cannot therefore be said that the lease deed in question could not have not produced before the trial court.

The second ground is however tenable. In the case of an eviction sought on the ground of personal necessity, subsequent events can be noted and evidence led in that behalf.

This petition is partly allowed and a direction is issued to the Appellate Authority to permit the additional evidence only qua Item No. III in para 5 of the application dated 16.8.1996. It is also clarified that the evidence on Item Nos. I and II in the abovesaid application already taken will not be used against the tenant.