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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
ASHUTOSH SRIVASTAVA, J.
Rameshwari Devi And Another – Appellant
Versus
Rakesh Mishra – Respondents
Matters Under Article 227 No.9446 of 2023
Decided on : 28-02-2024
Additional Evidence - Tenancy Dispute - UP Act No. 13 of 1972 - Section 21(1)(a), Order 41 Rule 27 CPC - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Order 41 Rule 27 CPC and the conditions for allowing additional evidence in the Appellate Court. It highlighted the discretionary jurisdiction of the Appellate Court and the exceptional circumstances under which additional evidence may be allowed. The court also referred to the decision of the Apex Court in Union of India vs. Ibrahim Uddin and Another, reported in 2012 (8) SCC 148, to emphasize the judicial exercise of discretion and the stage at which the application for additional evidence should be considered.
Fact of the Case:
The petitioners, tenants of a shop, filed an Application under Order 41 Rule 27 CPC to adduce additional evidence in a tenancy dispute. The Appellate Authority rejected the application, leading to the petition under Article 227 of the Constitution of India.
Finding of the Court:
The court found that the Appellate Authority erred in rejecting the Application under Order 41 Rule 27 CPC without considering whether the additional evidence was necessary for deciding the real controversy at hand. It held that the application should have been considered at the time of hearing the Appeal on merits.
Issues: The main issue was the rejection of the Application under Order 41 Rule 27 CPC for adducing additional evidence at the Appellate Stage.
Ratio Decidendi: The court emphasized the discretionary jurisdiction of the Appellate Court and the exceptional circumstances under which additional evidence may be allowed. It highlighted the judicial exercise of discretion and the stage at which the application for additional evidence should be considered.
Final Decision: The petition succeeded, and the impugned order rejecting the Application for additional evidence was set aside. The Appellate Authority was directed to reconsider the petitioners’ application in accordance with the law laid down by the Apex Court and to decide the Appeal expeditiously.
JUDGMENT :
1. Heard Sri Arpit Agarwal, learned counsel for the petitioners and Shri Vivek Saran, learned counsel for the respondents.
2. The instant petition under Article 227 of the Constitution of India has been filed for setting aside the judgment and order dated 08.08.2023, passed by the Appellate Authority/Additional District Judge, Court No. 4/Special Judge (EC Act) Pilibhit, in P.A. Appeal No. 8 of 2023 (Rameshwari Devi and another vs. Rakesh Mishra) whereby and whereunder the Application filed by the petitioner for adducing additional evidence under Order 41 Rule 27 read with Section 151 CPC has been rejected.
3. It is the case of the petitioners that they are tenants of a shop situated in Mohalla Bazar Katra, Tehsil and Town Area Bisalpur, Pilibhti and are conducting the business of Bangles from the shop in question. Originally, the tenancy of the shop was in the name of Shri Radheyshyam the late husband of the petitioner no. 1 and father of petitioner no. 2. After the death of Shri Radheshyam the tenancy devolved upon the petitioners. The shop was originally owned by one Sushil Kumar and was purchased by the respondent herein vide Sale Deed dated 21.07.2015. A Release Application under Section 21(1)(a) of the UP Act No. 13 of 1972 was filed by the respondent without issuing notice to the petitioners as contemplated under the 1st Proviso to Section 21(1) of the Act which proceedings were registered as PA Case No. 114 of 2018. The petitioners appeared in the Case and filed their objections taking a specific plea in their objections that the plaintiff/respondent had not served any notice upon the petitioners/tenants that he had purchased the shop. The learned Prescribed Authority, vide judgment and order dated 20.01.2023 allowed the Release Application. The petitioners being aggrieved by the order of the Prescribed Authority, have preferred an Appeal being Appeal No. 8 of 2023. During the pendency of the Appeal the original Counsel of the petitioners, conducting the Appeal, namely Shri V.S. Ashok took retirement from the profession and the petitioners had to engage another counsel namely Shri Ishan Gupta. Shri Ishan Gupta, Advocate on going through the file opined that certain relevant documents had not been brought on record and accordingly the petitioners preferred an Application under Order 41 Rule 27 CPC dated 09.05.2023 annexing the documents/evidence to be brought on record for consideration of the Appellate Authority in seisin of the Appeal. The documents sought to be filed as Additional Evidence were (i) certified copy of order dated 13.02.2020 passed in Original Suit No. 113 of 2016 (ii) certified copy of the Commission Report (iii) certified copy of the extract of the House Tax Assessment pertaining to the year 2017-18 pertaining to the plaintiff/respondent and his wife, photographs of the disputed shop and original invitation Card. The landlord/respondent filed objections to the Application under Order 41 Rule 27 CPC. The Appellate Authority vide order dated 08.08.2023 has rejected the Application under Order 41 Rule 27 CPC which order has been impugned in the instant petition.
4. Shri Arpit Agarwal, learned counsel for the tenant/petitioners has argued that the Appellate Authority has committed manifest error of law in rejecting the Application to bring on record the Additional Evidence. He has invited the attention of this Court to the provisions of Order 41 Rule 27 (1) (b) CPC and submits that Order 41 Rule 27 assigns discretion to the Appellate Court to require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. For the exercise of discretion under Order 41 Rule 27 (1) (b) CPC an application is required to be considered along with hearing of the Appeal on merits. It was not open for the Appellate Authority to have exercised the discretion vested in it before deciding the Appeal and the Application was liable to be considered at the
The main legal point established in the judgment is the judicial exercise of discretion by the Appellate Court in considering applications for additional evidence under Order 41 Rule 27 CPC.
The main legal point established in the judgment is that the power to permit additional evidence at the appellate stage under Order 41 Rule 27 CPC is limited and should be exercised sparingly, with s....
The admission of additional evidence in appellate proceedings requires a clear necessity to support the main issues at hand, as per Order 41 Rule 27 CPC.
An application for additional evidence under Order 41 Rule 27 CPC must be decided concurrently with the main appeal to uphold judicial efficacy and fairness.
Additional evidence must be evaluated during the final appeal hearing, not before, ensuring judicial rigor in respecting procedural rules.
Additional evidence under Order 41 Rule 27 CPC must be considered at the final hearing of an appeal, not prior.
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