Sunil Tondon vs Bal Krishan Bhagat and Bhagat

B.S. Verma, J.—Heard learned Counsel for the Petitioner and perused the record.

By means of this writ petition, the Petitioner has sought a writ in the nature of certiorari setting aside the order dated 14-2-2011 (Annexure-3 to the petition) passed by the Additional District Judge/ III F.T.C. Haridwar in Rent Control Appeal No. 86 of 2010 whereby the application of the Petitioner-Appellant for issuance of commission in appeal was rejected.

By a perusal of the impugned order it is obvious that the application of the Petitioner-Appellant paper No. 18-Kha has been rejected on the ground that the application does not satisfy the conditions of Order 41, Rule 27 of the Code of Civil Procedure

It appears that application 18-Kha u/s 34 of U.P. Act No. 13 of 1972 and Rule 22 of the Rules framed thereunder supported by affidavit, 19-Kha was moved by the Petitioner-Appellant before the appellate court in Rent Control Appeal No. 86 of 2010, on the ground that Respondent Bal Kishan is having one hotel and five shops and the son of the Respondent is looking-after the business of hotel and he is not in bona fide need of the disputed shop and that two shops are lying vacant. To verify this fact, commission be issued. Objection against the application was filed by the Respondent.

The learned appellate court after perusal of the record has observed in its order that this ground has already taken in the release application and there was ample opportunity to the Appellant to prove this fact before the Prescribed Authority. It has further been observed that in appeal, the Appellant can only be allowed to adduce the additional evidence by filing an application under Order 41, Rule 27 of the C.P.C., but in the application moved by the Petitioner-Appellant, no such averment has been made.

I have perused the application (paper No. 18-Kha) moved by the Petitioner-Appellant.

Order 41, Rule 27 CPC reads as under:

Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, but if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced, by an Appellate Court, the Court shall record the reason for its admission.

In view of the aforesaid provision of law, any party to an appeal may be permitted to produce additional evidence, if the party establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge and again after exercise of due diligence, such evidence could not be produced by him at the time when the decree appealed against was passed. But no such averment had been made in the application or the affidavit filed by the Petitioner-Appellant that these facts were not in his knowledge, therefore, the learned Additional District Judge has rightly rejected the application of the Petitioner for issuance of commission at appellate stage. It is well settled that for collecting evidence, no commission can be issued.

For the reasons and discussion above, I do not find any perversity or manifest error of law in the impugned order passed by the appellate court. The writ petition being devoid of merit is liable to be dismissed outright at the threshold.

The writ petition is dismissed summarily.

All pending applications stand disposed of.