Keshav Kumar Arora vs Atma Nand Jain Sabha

J.S. Narang, J.—The petitioner i.e. the tenant filed an appeal before the Appellate Authority, Patiala, against the order dated September 15, 2000, passed by the Rent Controller, Patiala. During the pendency of the appeal, an application for permission to adduce additional evidence has been filed u/s 15(3) of the East Punjab Urban Rent Restriction Act, 1949 (hereinafter referred to as "the Act") read with Order 41 Rule 27 of the Code of Civil Procedure. The thrust is to prove on record the original cheques dated November 3,1995 for Rs. 10,000/-, dated December 5, 1995 for Rs. 4800/- and also dated December 31, 1995 for Rs. 15000/- along with two site plans with the sale deed dated January 18, 1991. It shall be appropriate to notice here that the petitioner has been ordered f o be evicted on the ground of short tender of the rent whereas the ciairn of the petitioner is that the rent in fact had been enhanced from Rs. 2300/- to Rs. 2400/- and the same was reduced to Rs. 1000/- per month on the ground of having vacated some portion of the tenancy. This plea has not been accepted by the learned Rent Controller and consequently, the order of eviction has been passed.

To substantiate his plea an application for producing additional evidence has been filed before the Appellate Authority which has been contested by the respondent-landlord. The Appellate Authority dismissed the application vide order March 26, 2001. Aggrieved of this order, the present petition has been filed.

Notice of the motion was issued and counsel for the respondent-landlord accepted notice and the arguments have been heard.

Learned counsel for the petitioner contended that the Appellate Authority has fallen into error by strictly applying Order 41 rule 27 C.P.C. and has, therefore, corne to erroneous conclusion that proper judgment can be pronounced in the absence of the additional evidence sought to be produced by the petitioner-landlord. The argument is that in view of the specific provision contained in the Act, u/s 15(3) of the Act, the powers of the Appellate Authority are unfeltered for granting permission to lead additional evidence. It shall be apposite to read the said provision which is reproduced as hereunder :-

Vesting of appellate authority on officers by the State Government :-

(1) xxx xx

(2) xxx xx

(3) The appellate authority shall decide the appeal after sending for the records of the case from the Controller and after giving the parties an opportunity of being heard and, if necessary, after making such further inquiry as it thinks fit either personally or through the Controller."

It has been further argued that the powers of the Appellate Authority cannot be restricted by importing the restrictions and the restraints which have been provided under Order 41 Rule 27 C.P.C. In support of his argument he had placed reliance upon :

(1) Dr. Chaman Lal v. Shri Harmohinder Singh and another 1979 (1) RLR 183 (P&H) : 1979(1) RLR 83,

(2) Shri Amar Singh v. Shri Shiv Ram and another 1984 (1) RCR 527 : 1984 (1) RLR 347

(3) Badlu Ram v. Messrs Munshi Ram Ram Bhaj and another 1986 RLR 330 : 1985(2) RLR 279,

(4) Yudhister v. Ashok Kumar 1987 (1) RLR 225 : 1987 RCJ 238, and

(5) Kasturi Lal Handa and another v. Bhajan Singh, 1991(2) RLR 35 : 1991(1) RLR 350.

Learned counsel for the respondent has controverted the argument and has submitted that the power which has been conferred upon the appellate authority cannot be accepted as the power without any restraints and without any fetters. It is admitted that the procedure as provided under the C.P.C. may not apply strictly to the proceedings before the Rent Controller and the Appellate Authority but the principles have been accepted to be applicable to the said proceedings. By keeping this principle in mind, the argument of the learned counsel for the petitioner cannot be accepted that the appellate authority has unfettered powers as contained in Section 15(3) of the Act and that every application filed for seeking production of additional evidence has to be allowed and that if the same has to be weighed keeping in mind the restrictions and restraints, only the principles as provided under Order 41 Rule 27 C.P.C. shall have to be pressed into operation.

It has been further argued that the basic principles for seeking permission to adduce additional evidence has not been satisfied by the petitioner as he had tendered the rent in the present proceedings through the counsel whose statement had been recorded by the Rent Controller on March 29, 1996 which reads as under (copy of the said statement was produced in Court which has been taken on record for reference only) :-

Statement of Sh. S.S. Verma, Advocate, counsel far the respondents.

No rent is due towards the respondents. The respondents had paid Rs. 10,000/- vide cheque dated 3.11.95, Rs. 4800/- vide cheque dated 5.12.1995 and another cheque dated 31.12.1995 amounting to Rs. 15000/-, Total Rs. 29800/- have been paid to the petitioner. Interest Rs. 1450/- and Rs. 100/- as costs = Total amounting to Rs. 1550/- out of its, Rs. 1000/- paid previously to the petitioner. I tender Rs. 550/-.

RO and A.c.

Sd/- S.S. Verma, Advocate Sd/- U.S. Gera, R.C. 29.3.1996"

Learned counsel has further argued that absolutely new plea is sought to be set up now and that if the statement of the counsel for the petitioner- respondent made before the Rent Controller is analysed, the plea of addilional evidence looks to be absolutely at variance. If the provision contained u/s 15(3) of the Act, is analysed such powers can be said to be available only to the Appellate Authority and-not the Rent Controller during the pendency of the petition before the Rent Controller and that if any additional evidence has to be allowed by the Rent Controller, the same would be allowed keeping in mind the principles enunciated under Order 18 Rule 17-A C.P.C. It shall not be that during the conformity of the applicability of the principles of CPC, before the forum the said principles arc made applicable and before the other forum constituted under the same statute, the specific provision with unfettered power should be accepted. As such, the appellate authority has come to the correct conclusion by subjecting its powers contained u/s 15(3) of the Act to Order 41 Rule 27 CPC. In support of his arguments, reliance has been placed upon the follow-ing judgments:-

(1) Shri Sat Pal food v. Shri Roshan Lal Kohli 1971 P.LR. 98

(2) Shri Rattan Chand Jain v. Shri Charan Singh 1978 (1) RCR 265

(3) Yogdheyan Singh and others v. Devki Nandan and others, 1991(1) RCR (Rent) 121 (P&H) : 1991(1) PLR 90,

(4) Balbir Singh v. Balkar Singh and another, 1993(1) RCR (Rent) 1 (P&H) : 1993(1) PLR 470 and

(5) Kharaiti Lal Chopra v. Shri Inder Mohan Bhatia, 2001(1) RCR(Rent) 178 (P&H) : 2000(2) PLR 185.

I have considered the rival contentions of the learned counsel for the parties. 1 am sanguine with the arguments of the learned counsel for the petitioner that the appellate authority has been conferred with specific powers in this regard but I cannot accept at the same time the contention that the said power is unfettered power. If this argument is taken to the logical conclusion then each and every application filed for seeking prodvtction of additional evidence shall have to be allowed. If each application has to be tested what is the test which has to be resorted to, in the absence of any guidance being available from the statute. The forums constituted under the statute that is the Act in the absence of any specific guidelines under the statute, the principles of the CPC have been adhered to. In the present case, no doubt the power has been conferred upon the Appellate Authority by virtue of Section 15(3) of the Act but the said provision is silent as to how the application for adducing additional evidence has to be tested and allowed accordingly. In this situation, the principles as enunciated under the Code of Civil Procedure, shall have to be pressed into operation. We may not resort to applicability of Order 41 Rule27 C.P.C. strictly and mathematically but the principles so enunciated can be followed while deciding the application taking it to have been filed u/s 15(3) of the Act. Applying these principles, application of the petitioner has to be tested accordingly. The Appellate Authority has, therefore, come to a correct conclusion while keeping into consideration the factor that the additional evidence sought to be produced by the petitioner-respondent shall be of no consequence in view of the fact that substantial evidence in this regard has already been brought on record and further if the said additional evidence is allowed to be brought on record, it shall create confusion and carve out a scope for the petitioner-respondent to find escape route from the admissions which have been made documentary as well as oral. I am of the opinion that if such indulgence is given now the de nova evidence shall have to be permitted once over again and it shall amount to retrial of the matter which stands now concluded by the learned Rent Controller. It further looks that the plea is nothing but an after thought which is now being sought to be established by way of additional evidence.

In view of the above, no interference is called for and the petition is dismissed accordingly.

Petition dismissed.