Mohan Lal and Others vs Manohar Lal Makkar and Another

N.K. Kapoor, J.—This revision petition is against the order of the appellate authority dated 2.2.1995 permitting the landlord to adduce additional evidence in the pending-appeal. Respondent filed an eviction application u/s 13 of the East Punjab Rent Restriction Act on the ground of arrears of rent and that the premises has become unfit and unsafe for human habitation. The Rent Controller on the basis of evidence led found merit in the plea of the respondent and so passed an order for eviction of the petitioner on the ground that the building in question has become unfit and unsafe for human habitation. Dis-satisfied with the order of the Rent Controller, the petitioner filed appeal before the appellate authority. It is during the pendency of the appeal that the respondent filed an application u/s 15(3) of the East Punjab Rent Restriction Act to lead additional evidence. It was averred that on account of subsequent events and fresh facts which have come to notice, the necessary permission be granted to adduce in evidence the report of the Local Commission, who has examined the adjacent properties of the respondent, which also throws light upon the condition of the intervening wall of the premises in possession of the petitioner. This application was registered by the respondent. Considering the submissions made, the appellate authority found substance in the plea of the respondent and so granted the prayer to place on record the reports of the Local Commission subject to, however, of producing the Local Commissioner for cross-examination of the petitioner as well as permitting the petitioner to lead any evidence in rebuttal to the report of the Local Commissioner.

The grievance of the petitioner is that the appellant authority exceeded in its jurisdiction while granting the prayer for the additional evidence made by the respondent. According to learned counsel for the petitioner, matter having been decided in favour of the respondent by the Rent Controller, the permission sought and granted by the appellate authority to adduce in evidence the report of the Local Commissioner appointed in another Court is quiet exceptional. According to the counsel, the petitioner has been greatly prejudiced by this Order. Had the Commissioner examined the premises after serving notice upon the petitioner, the matter would have been entirely different? This way the petitioner''s claim clearly stands prejudiced. In any case, the report of the Local Commissioner on the adjoining building can have hardly any bearing upon the matter in controversy to be adjudicated by the appellate authority.

Reliance has been placed upon the following judgments:

i) Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 .

ii) Jamil Ahmed Taban and Others Vs. Khair-Ul-Nisa and Others, .

iii) Balbir Singh Vs. Balkiar Singh and Another,

Counsel for the respondent supporting the order of the appellate authority, highlighted the factual aspect that the location of the disputed portion vis-a-vis the adjoining portions forms one composite building. According to the counsel, he intervening wall of shops in possession of other tenants, namely, Lai Singh and Jeewan Dass and of the property in possession of the petitioner is common. It is with a view to fortify the conclusion arrived at by the Rent Controller that building in dispute is in a dilapidated condition that the reports of the Local Commissioner appointed by the Court in other eviction applications have become necessary. According to counsel, power of the appellate authority u/s 15(3) of the East Punjab Rent Restriction Act is in no manner circumscribed as suggested by the learned counsel for the petitioner. The appellate authority is well within its power to hold such further enquiry as it thinks fit either personally or through the contractor. Adverting to the impugned order, the learned counsel for the respondent highlighted the jurisdiction of the Court to the effect that the report submitted by the Local Commissioner in eviction applications in the case of Jeewan Dass and Lai Singh has become necessary to adjudicate the matter in a satisfactory manner. Thus, the appellate authority, after assessing the respective submissions has come to this conclusion which cannot be said to be vitiated in any manner. Moreover, the impugned order does not prejudice the petitioner in any manner, especially when it has been made incumbent upon the respondent to produce the Local Commissioner for cross-examination of the-petitioner and as well as permitted the petitioner to lead any evidence in rebuttal to the report of the Local Commissioner.

Having heard the learned counsel for the parties and after perusing the order of the appellate authority, I am of the considered view that the present revision petition is devoid of any substance and so merits dismissal. Broad facts are not in dispute i.e. the existence of the property in dispute and of the properties in occupation of Jeewan Dass and Lal Singh. As per site plan, Exhibit AW4/1, this forms one compact block. One common wall separates the premises of Jeewan Dass and Lai Singh from that of the petitioner. The application for additional evidence filed by the respondent is solely with a view to further support his contention that building is in a dilapidated condition and has become unfit and unsafe for human habitation. Conclusion of the Rent Controller as to the condition of the building is indeed a subject matter for adjudication before the appellate authority. Evidence now sought to be adduced by the respondent will indeed help the authority in finally coming to the conclusion as to the merit of the contentions to be raised by the respective parties. Such a piece of evidence as has been permitted by the appellate authority by way of additional evidence will infact help the authority in coming to the right conclusion. Decisions cited relate to the ambit of power of the Court under Order 41 Rule 27 CPC i.e. to exercise such a discretion in a judicial manner. In Arjan Singh''s case (supra) the apex Court held that the discretion given to the appellate authority by Order 41 Rule 27 CPC to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that Rule. Possibly there is no dispute to the proposition of law as laid down in this decision of the apex Court. In the present case, the appellate authority after weighing the pros and cons of the matter has come to the conclusion that the report of Local Commissioner will throw some light to evaluate the conflicting stand of the parties with regard to the condition of the building in dispute. Thus, discretion exercised cannot be termed to be arbitrary. Other authorities cited by the counsel have infact no bearing upon the point in controversy. It is in the light of facts of each case that the Court has to examine whether a case for additional evidence is made out or not. Once the Court comes to the conclusion that such an additional evidence is likely to help the Court in adjudicating the matter in controversy, the discretion so exercised cannot be termed to be arbitrary or unjust. Accordingly, finding no merit in this revision petition, the same is dismissed. It is, however, made clear that the appellate authority will confine the report of the Local Commissioner with regard to the intervening wall for judging as to whether the building is in a dilapidated condition and so has become unfit and unsafe for human inhabitation. Parties are directed to appear before the appellate authority on 25.5.1995.