JUDGMENT Krishna Murari, J.
1. Challenge in this writ petition has been made to two orders of the appellate court dated 4.4.2006 and 5.4.2006. By order dated 4.4.2006, the appellate court refused to extend the stay of the order of the prescribed authority and by order dated 5.4.2006, the application of tenants-petitioners to file certain additional evidence has been rejected.
2. The undisputed facts are that respondents-landlords filed an application under Section 21(1)(a) of the U. P. Act No. 13 of 1972 (for short the Act) for release of the accommodation in dispute. The prescribed authority vide order dated 23.1.2006, allowed the said application. Feeling aggrieved, tenants-petitioners filed an- appeal. On 21.2.2006, when the appeal came up for hearing the counsel appearing for landlords-respondents gave an undertaking before the appellate court that if some early date for disposal of appeal is fixed they will not put the order of the prescribed authority in execution. The appellate court fixed 1.4.2006 for final hearing. On 1.4.2006, the case was adjourned to 4.4.2006 and the undertaking given by the respondents-landlords was extended. On 4.4.2006, the appellate court directed the record of the trial court to be summoned and fixed 5.4.2006. The application for extension of stay moved by the tenants-petitioners was objected by the respondents-landlords on the ground that undertaking was given on the condition that the appeal may be heard on 1.4.2006. Now since tenants-petitioners have moved an application for taking additional evidence on record, which will delay the disposal of the appeal as such, the stay should not be extended. The appellate court rejected the application for extension of stay and fixed 5.4.2006. On 5.4.2006, the application filed by the tenants-petitioners for taking additional evidence was rejected.
3. I have heard Sri Ravi Kiran Jain learned senior advocate assisted by Sri V. K. Agarwal for the petitioners and Sri S. N. Singh for the contesting respondents.
4. It has been stated by Sri S. N. Singh that he does not propose to file any counter-affidavit. With the consent of the learned Counsel for the parties the writ petition Is being finally disposed of.
5. It has been urged by the learned Counsel for the petitioners that the application filed by the petitioners for taking additional evidence has been rejected solely on the ground that the said documents relate to the period prior to the decision of the trial court and the application has been filed with a view to delay the proceedings without even considering the reason mentioned in the application for not filing the documents at the stage of trial.
6. In reply, it has been contended that the documents were very much in existence during the pendency of the proceedings before the trial court but were not filed there and these documents being filed at the appellate stage are not liable to be accepted and the application has rightly been rejected by the appellate court.
7. I have considered the arguments advanced by the learned Counsel for the parties and perused the record.
8. The application to take additional evidence on record has been annexed as Annexure-6 to the writ petition. It has been stated in the application that documents sought to be filed as additional evidence to demonstrate that Sri Amit Kumar Lohiya son of landlord/respondent No. 2 was employed with Lohiya Eastern Software System Ltd. as a Software Engineer and Sri Chand Prakash Lohiya, landlord/respondent No. 5 is residing in House No. 1639, Sector 16, Daulatabad (Faridabad) could not come to the knowledge of the petitioners during the pendency of the proceedings before the prescribed authority. With regard to the additional evidence to show that tenants/petitioners tried to obtain alternative accommodation it has been stated that the same were misplaced as such could not be filed before the prescribed authority.
9. A perusal of the order dated 5.4.2006, goes to show that the application has been rejected on the ground that additional evidence sought to be filed by the petitioners were In existence prior to the decision of the prescribed authority and since none of the said documents are of the date after the decision of the prescribed authority and the petitioners have failed to disclose specifically when the said documents came to his knowledge. Another reason recorded by the appellate court for rejecting the application is that tenants/petitioners had made effort to file evidence before the prescribed authority after the stage of evidence was over and the same was rejected vide order dated 23.1.2006.
10. Under Section 10(2) of the Act the appellate authority while hearing appeals against the order passed under Sections 8, 9 and 9A of the Act Is empowered to take additional evidence. By virtue of Section 22 of the Act dealing with the provisions of appeals against an order made under Section 21 of the Act, the provisions of Section 10 of the Act have been mutate mutandis applied. Thus, the appellate authority while hearing an appeal under Section 22 of the Act is empowered- to receive additional evidence. Section 34 of the Act confers on the prescribed authority or the appellate authority certain powers of civil courts prescribed by the Code of Civil Procedure In respect of certain matters enumerated therein. Rule 22 of the Rules framed under the Act apart from other powers also confers power exercisable by a civil court under Sections 151 and 152, C.P.C. to make an order to secure the ends of justice. However, no guidelines have been laid down either under the provisions of the Act or Rules framed thereunder to be followed by the appellate court while receiving additional evidence. The provisions of Order XLI, Rule 27, C.P.C. which apply to civil court have not been made expressly applicable to the proceedings under the Act. However, mere absence of a specific provision will not necessarily mean that statute intended to prohibit the application of Order XLI, Rule 27 or at least the principles underlying the said provision. In the case of Narsingh Ram v. Mongol Pandey, ILR 5 All 163, it has been observed by Hon'ble Mahmood, J., as follows :
Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is express provision of the Code but on the converse principle, that every procedure Is to be understood as permissive till it is shown to be prohibited by law. As a matter of general principles prohibition cannot be presumed.
11. Applying the above principles, there being no specific prohibition for application of Order XLI, Rule 27, C.P.C., the general principle laid down therein for receiving additional evidence can be drawn upon by the appellate authority while exercising the discretion to admit additional evidence.
12. In the present case, the appellants have given reasons, in their application to produce additional evidence, which have not been tested by the appellate court. The appellate court has not held that documents sought to be filed as additional evidence were irrelevant but the application has been rejected simply on the ground that the documents were in existence prior to the filing of the appeal and were not filed before the prescribed authority. Order XLI, Rule 27, does not contemplate that the documents, which were in existence prior to the filing of the appeal, cannot be taken in additional evidence. The requirement is that party seeking to produce additional evidence in appeal must satisfy the Court that inspite of due diligence the said evidence could not come to his knowledge or could not be produced by him before the court below. In order to arrive at the conclusion whether the additional evidence is liable to be accepted or not the appellate court Is required to test the reasons given by the party seeking to produce additional evidence. The appellate court has miserably failed to test the reasons given by the appellants and wrongly rejected the application on irrelevant considerations.
13. The other reason recorded by the appellate court that similar attempt to produce evidence was rejected by the prescribed authority, also does not constitute valid ground for rejecting the application moved by the petitioners to produce additional evidence for two reasons, firstly, a perusal of the order dated 23.1.2006, passed by the prescribed authority filed as Annexure-3 (b) to the writ petition goes to show that none of the documents sought to be filed as additional evidence before the appellate court were produced In evidence before the prescribed authority and secondly, a party becomes entitled to produce additional evidence in accordance with the provisions of Order XLI. Rule 27(1)(a). C.P.C. If the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.
14. The other order of the appellate court dated 4.4.2006, refusing to extend the interim order also cannot be said to be justified. In case the respondent/landlord had refused to extend the undertaking given by him not to execute the order of the prescribed authority it was duty of the appellate court to have considered and passed appropriate orders on the stay application. It has been held by the Hon'ble Apex Court in the case of Moot Chand v. Raza Buland Sugar Industry, 1983 AWC 121, that grant of stay against an order having civil consequences in case of admission of appeal against the same Is a must. The following observation of the Hon'ble Apex Court may be relevant to quote ;
But if orders are challenged and the appeals are pending, one cannot permit a swinging pendulum continuously taking place during the pendency of the appeal.
15. In view of the law laid down by the Hon'ble Apex Court It was incumbent upon the appellate court to have passed suitable orders on the stay application filed by the tenants-petitioners once their appeal was entertained.
16. In view of the aforesaid discussions, the two orders dated 4.4.2006 and 5.4.2006, impugned in the writ petition cannot be sustained and are hereby quashed. The writ petition stands allowed.
17. The matter is remanded back to the appellate court to consider the application filed by the tenants-petitioners for production of additional evidence afresh in accordance with law and In the light of observations made hereinabove and also to consider and pass suitable order on the stay application. Till such time the order Is passed by the appellate court on the stay application, the order of the prescribed authority dated 23.1.2006 shall remain stayed. The appellate authority shall make every endeavour to decide the applications as well as the appeal, expeditiously without giving any unnecessary adjournments to either of the parties.
18. In the facts and circumstances, there shall be no order as to costs.