The appellate court has the power to admit additional evidence at the appellate stage and must provide valid reasons for refusal to admit evidence. Due diligence and the nature of the facts set out in the affidavit sought to be brought on record are crucial considerations.

S. R. Singh, J.

1. Heard the learned counsel for the petitioner and also the counsel appearing for the respondents.

2. IN appeal preferred against the order of eviction passed under Section 21 (1) (a) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, the petitioner moved an application for adducing additional evidence. The appellate court rejected the application by means of a laconic order dated 30-11-1995 impugned in this petition which reads as below. "heard. The evidence sought to be adduced at the appellate stage is highly belated. Rejected. "

Having heard the learned counsel for the parties, I am pursuaded to the view that the impugned order cannot be sustained 'for it assigns no valid reasons for refusal to admit evidence at the appellate stage. Section 34 of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, provides that the District Magistrate, the Prescribed Authority or any (appellate or revising authority) shall for the purposes of holding any enquiry or hearing (any appeal or revision) under this Act, have the same powers as are vested in the civil court under the Code of Civil Procedure, 1908 when trying a suit, inter alia in respect of receiving evidence on affidavit. The petitioner, in fact, wanted to adduce additional evidence in the shape of affidavit bringing on record certain additional facts which could not be brought on record earlier. It brooks no dispute that in respect of admission of additional evidence at the appellate stage, the appellate court enjoys the same powers as are vested in the Civil Courts under Order 41, Rule 27 of the Code of Civil Procedure, which provides that the parties 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 could not be produced by him at the time when the decree appealed against was passed, or (b) the appellate court require 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. Section 10 (2) of the U. P. Act 13 of 1972 also provides that the appellate authority may take any additional evidence. Provisions of Section 10, mutatis mutandis, apply in relation to an appeal preferred under Section 22 of the Act. Sub-rule (2) of Rule 10 provides that whenever additional evidence is allowed to be produced by an appellate court, the court shall record reasons for its admission. This cannot be interpreted to signify that reasons are not required to be given for refusal to admit additional evidence at appellate stage.

3. A conjoint reading of Section 10 (2), Section 22, Section 34 of the U. P. Act 13 of 1972 and Order 41, Rule 27 of the Code of Civil Procedure would be speak that the appellate court was enjoined with a duty to record reasons while allowing or rejecting an application, for adducing additional evidence in the shape of affidavit. The mere fact that the additional evidence sought to be adduced was belated, was by itself no ground to merit rejection of the application. It would depend upon the nature of the facts set out in the affidavit sought to be brought on record and whether such facts could have been reasonable brought on record at earlier stages of the case and whether the party adducing additional evidence was taxed with the negligence of non-exercise of due diligence. Principles enunciated in clause (aa) of Order 41, Rule 27 (1) of the Code of Civil Procedure signify that if the party seeking to adduce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was