The appellate court has the discretion to frame additional issues and record additional evidence under Order 41 Rule 25 and Rule 28 of the Code of Civil Procedure.

ORDER

1. This writ petition under Article 227 of the Constitution of India filed by the petitioner/non-applicant/tenant is directed against the order sheet dated 28.07.2022 drawn by the learned Appellate Rent Tribunal, Sikar in appeal no.14/2020 whereby, the matter has been posted on 07.09.2022 for arguments on an application filed by the petitioner under Order 41 Rule 25 and Section 151 CPC read with Section 21 of the Rajasthan Rent Control Act, 2001 (for brevity, ’the Act of 2001’) as also for arguments on appeal.

2. The relevant facts in brief are that an application filed by the respondents/landlord under Section 6 and Section 9 of the Act of 2001 came to be allowed by the learned Rent Tribunal, Sikar vide its order dated 25.02.2020, which is subject matter of challenge in rent appeal no.14/2020 preferred by the petitioner which is pending consideration before the learned Appellate Rent Tribunal, Sikar. During the pendency of the appeal, the petitioner filed an application under Order 41 Rule 27 and Section 151 CPC read with Section 19(9) and Section 21 of the Act of 2001 which came to be allowed by the learned Appellate Rent Tribunal vide its order dated 05.04.2021. Thereafter, the petitioner filed an application under Order 41 Rule 25 and Section 151 CPC read with 21 of the Act of 2001 praying therein for framing two additional issues and recording evidence thereupon. Reply to the application has been filed by the respondents-landlord. The Appellate Rent Tribunal has, vide its order dated 28.07.2022, posted the matter on 07.09.2022 for arguments on the application as also on appeal.

3. Learned counsel for the petitioner submits that once his application under Order 41 Rule 27 and Section 151 CPC read with Section 19(9) and Section 21 of the Act of 2001 was allowed by the learned Appellate Rent Tribunal, Sikar vide its order dated 05.04.2021, it was obligatory upon it to have framed additional issues and record evidence thereon. He submits that provisions of Order 41 Rule 25 CPC cast a mandatory duty upon the learned appellate Court to frame additional issues as and when additional document is taken on record. He further submits that without following the procedure laid down under Order 41 Rule 28 CPC, issues under Order 41 Rule 25 cannot be framed. He submitted that the learned Appellate Rent Tribunal erred in posting the matter for arguments on his application as also on appeal inasmuch as in case his application is allowed on 05.04.2021 or any other day, arguments on appeal cannot be heard on the same day. He, therefore, prayed that the writ petition be allowed and the order impugned dated 28.07.2022 be quashed and set aside.

4. Heard. Considered.

5. The submission of the learned counsel for the petitioner that allowing the application under Order 41 Rule 27 CPC would automatically entail the framing of additional issues and recording evidence thereupon, does not merit acceptance as the scheme of the Code of Civil Procedure does envisage the aforesaid situation. This Court is also not satisfied that before considering the application filed by the petitioner for framing additional issues, procedure under Order 41 Rule 28 CPC has to be followed. Rather, from the provisions contained under Order 41 Rule 25 and Rule 28 CPC, it is apparent that it is judicious discretion of learned trial Court to frame additional issue(s) and/or to record additional evidence. In the backdrop of aforesaid statutory provisions, contention of the learned counsel for the petitioner that the learned Appellate Rent Tribunal erred in fixing the matter for arguments on an application filed by him under Order 41 Rule 25 and Section 151 CPC read with Section 21 of the Act of 2001 alongwith arguments on the appeal inasmuch as in case his application for framing additional issues and recording evidence thereupon is allowed, the appeal cannot be heard on that day, does not merit acceptance.

6. Apprehension of the learned counsel for the petitioner is wholly m