Heard Sri Md. Muzzammil.I.Qureshi, learned counsel for the petitioners and Sri Santosh Kumar Srivastava, learned counsel for the respondent nos. 1 to 5.
This writ petition has been filed for quashing the impugned order dated 11.2.1993 and 12.7.2006 passed by the Board of Revenue, U.P. At Allahabad, whereby revision filed the respondent no. 2, was allowed and subsequently, the review application filed by the petitioners was rejected.
Briefly stated, the facts of this case, are that the petitioners were allotted Plot Nos. 134, 135,136,137, 138 and 139 situated in village Nevada, Tehsil & District Baghpat on 22.11.1975 by the Gaon Sabha, after obtaining approval from the Sub-Divisional Officer of the concerned division. Subsequently, respondent nos. 1 to 5 filed an application for cancellation of allotment made in favour of the petitioners under Section 198 (4) of the U.P. Z.A. & L.R. Act (hereinafter referred to as the 'Act'). The said application was rejected by the Additional Collector vide order dated 23.3.1978 on the ground that Land Management Committee was not a party. Against that order, revision was filed by the contesting respondents which too was dismissed on 29.11.1979.
The contesting respondents again filed an application for cancellation of the allotment in favour of the petitioners in the year 1981 which was rejected by the Additional Collector vide order dated 6.2.1982. Against the said order, a revision was filed which too was dismissed vide order dated 23.1.1984 by the Additional Commissioner.
Challenging the aforesaid order dated 6.2.1982 of the Additional Collector and order dated 23.1.1984 of the Additional Commissioner, revision was filed by the contesting respondent before the Board of Revenue which has been allowed vide impugned order dated 11.2.1993, cancelling the allotment made in favour of the petitioners. The petitioners thereafter filed an application (bearing No. 111 of 1995-96/ Meerut) in Revision No. 150/1983-84) before the Board of Revenue for reviewing the said order but the said review application has also been rejected vide order dated 12.7.2006. These two orders passed by the Board of Revenue dated 11.2.1993 & 12.7.2006 are impugned in the writ petition.
The contention of learned counsel for the petitioner is that during the pendency of the revision before the Board of Revenue, an application was filed from the side of the contesting respondent for additional evidence in which some documents were sought to be admitted in evidence, in order to show, that the contesting respondents are in possession. No order was passed by the Board of Revenue on the application for accepting the additional evidence..
It is further contended by the learned counsel for the petitioners that the order passed by the Board of Revenue taking into consideration the additional evidence, is contrary to the provisions of Order 41 Rule 27 C.P.C. as well as without admitting the same.
On the other hand, learned counsel for the respondents justified the impugned orders by stating that time was granted to the petitioners on several occasions but the petitioners had failed to file any reply to the application for additional evidence, therefore, the said application shall be deemed to have been allowed and the additional evidence admitted. Accordingly to the learned counsel, in such circumstances, and the Board of Revenue has rightly relied upon the said documents as an additional evidence.
I have considered the rival submissions of the parties and perused the record.
In their supplementary affidavit, the petitioners have appended the said application as Annexure no.1 and in paragraph no.2 of the supplementary affidavit dated 16.7.2006, it has specifically been stated that no order was passed on the application for additional evidence, although impugned order has been passed which is contrary to the provisions of Order 41 Rule 27 of C.P.C. In reply thereto, the contesting respondent in their supplementary counter affidavit in paragraph no.6, have stated that on the application filed under Order 41 Rule 27C.P.C, no reply/objection was filed by the petitioners and as such the said application is deemed to have been allowed and hence there was no need for passing any formal order thereon.
In order to appreciate the controversy involved in the present case, it will be appropriate to have a look on the provisions as contained under Order 41 Rule 27 CPC, which, for ready reference, are reproduced hereinunder:-
"Rule 27- Production of additional evidence in Appellate Court - (1) The parties to an appeal shall not been 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
From a bare reading of the above quoted provision, it is apparent that party seeking to produce the additional evidence first has to establish that the said evidence was not within their knowledge and could not be filed after due diligence and only then the additional evidence can be admitted. Perusal of the application for additional evidence appended as Annexure S.A.-1 to the supplementary affidavit, is totally silent as to satisfy the ingredients as mentioned in Order 41 Rule 27 of C.P.C. Further, it is admitted in the supplementary counter affidavit that no order had been passed on the application for additional evidence. It is abundantly clear from the language used in Order 41 Rule 27 (2) C.P.C. as quoted above, that if additional evidence is allowed to be produced by the Appellate Court, reasons are required to be recorded by it.
That being so, the Board of Revenue appears to have committed illegality in allowing the revision filed by the contesting respondents after taking into consideration the additional documentary evidence on record without passing any specific order admitting the additional evidence.
The Board of Revenue further erred in rejecting the review application without addressing the above issue raised therein.
In view of the above facts and circumstances, the orders impugned dated 11.2.1993 and 12.7.2006 passed by the Board of Revenue are not sustainable in the eyes of law and are hereby quashed.
In the result, the writ petition succeeds and is allowed. The matter is remitted to the Board of Revenue with the direction to restore the revision to its original number and decide it afresh in accordance with law considering the application for additional evidence in terms of Order 41 Rule 27, C.P.C., in the light of observations made above, expeditiously.
No order as to costs.
Order Date :- 27.9.2018 Akbar