Narayan Das Shah and Others vs Gulabchand Seth and Others

Ran Vijai Singh, J.�Heard Sri Ashish Kumar Srivastava, learned Counsel for the petitioners.

This writ petition has been filed for issuing a writ of certiorari quashing the order dated 7.8.2014 and order dated 29.10.2014 passed on application Nos. 21C and 24C respectively filed in Narayan Das Shah and another v. Gulabchand Seth and others, Rent Appeal No. 4 of 2014, by which the aforesaid applications have been rejected by the learned Additional District Judge, Court No. 5, Varanasi.

The facts given rise to this case are that the respondents herein have filed an application under section 21(1)(a) of U.P. Act No. 13 of 1972 seeking release of the accommodation in dispute on the ground that the respondents (applicants) had only house in which he can establish himself. To this application, an objection was filed stating therein that the wrong statement has been made in the release application as the landlord has another House No. C-8/75, Mohalla Chet Gunj, Varanasi and the averments made in paragraph No. 12 of the release application are false. The factum of the existence of another house has been admitted in the rejoinder affidavit filed by the respondents before the Prescribed Authority later on.

The petitioners herein have filed an application requiring the landlord to produce the copy of the sale-deed, title deed, house tax, bills and title deed of the house in dispute. This application was rejected by the learned Prescribed Authority on 28.10.2013 on the ground that there is no dispute of title in between the parties as the respondents-applicants have filed the application seeking release of the accommodation treating the petitioners to be the tenant. Shortly thereafter, the release application was allowed on 11.12.2013.

Aggrieved by the aforesaid order, the petitioners filed Narayan Das Shah and another v. Gulabchand Seth and/others, Rent Appeal No. 4 of 2014. In the appeal, the petitioners filed an application requiring the permission of the Court to file additional evidence. Through this application, the petitioners have brought on record sale-deed of House No. C-8/75, Mohalla Chet Ganj, Varanasi, one publication made by the petitioners in the newspapers for searching alternative accommodation and an application under section 5 of the Right to Information Act, 2008 given to the Varanasi Development Authority for obtaining information as to whether any map has been sanctioned for reconstruction of House No. C-8/75, Mohalla Chet Ganj, Varanasi. This application has been rejected by the Appellate Court on the ground that so far as the existence of another house is concerned, that is already available in the pleading of the parties.

It has also been observed by the Appellate Court that no one can file additional evidence as a matter of right and it is the discretion of the Court, either to accept the same or not and the application has been filed only with a view to delay the proceeding. This order was passed on 7.8.2014.

Seeking recall of the aforesaid order, the petitioners herein filed an application on 29.10.2014 being Application No. 24-C. The application has been rejected on the ground that the application has been filed wider section 151 of the Code of Civil Procedure (in short ''C.P.C.''), whereas the power of review is available under section 114 read with Order XLVII of C.P.C. Otherwise also, there is no justification to recall this order. After observing this, the recall application has also been rejected.

Learned Counsel for the petitioners while assailing these orders submitted that the learned Courts below have erred in passing the impugned orders as these documents were necessary for deciding the real controversy. In his submissions, the landlord has not come before the Court below with clean hands and concealed the existence of another house and when the petitioners disclosed the same in the written statement and filed an application for producing the sale-deed, that has been wrongly rejected and shortly thereafter, the release application was allowed without there being any proper time to challenge the aforesaid order.

I have heard learned Counsel for the petitioner and perused the impugned judgments. From the perusal of the same, it transpires that the petitioner has taken plea before the learned Prescribed Authority that the respondent has got another house and he has concealed this fact in the release application and the stand taken by the petitioner in the counter-affidavit was admitted by the landlord. In that eventuality, if the details as to how the house in question belongs to the respondent, whether it was purchased by him or constructed by him or is it of commercial importance or residential one, it was incumbent upon him to collect the evidence from his own source, but instead of doing so, he has filed the application before the Prescribed Authority requiring the landlord to produce all these things, which application has been rejected. Now, almost the same thing has been sought to be brought on record through additional evidence. For accepting the additional evidence on record under Order XLI, Rule 27 of the Civil Procedure Code, one must show before the Court that in spite of due diligence, the evidence could not be filed before the Court below.

Here, everything was in the notice of the petitioner and from the perusal of the records, it transpires that no effort was made to find out the details as has now been done, therefore, I do not find any error in the impugned orders. However, looking into the law laid down by the Apex Court in the case of Union of India (UOI) Vs. Ibrahim Uddin and Another, wherein it has been observed that any application for filing additional evidence ought to be considered at the stage of hearing of the appeal and if the Court finds that the documents sought to be brought as additional evidence are necessary for deciding the real controversy, in that eventuality, the application may be allowed, otherwise, it should be rejected. Since in this case, the application has been rejected prior in time and not at the time of hearing of the appeal, it will be open for the Appellate Court to reconsider as to whether the documents, which are already on record through application filed by the petitioners, are really necessary for deciding the real controversy or not and in case the same are necessary, in that eventuality, the Court may re-consider the same without being influenced by its earlier order.

With the aforesaid observation/direction, the writ petition is disposed of.