Court No. - 19
Case :- WRIT - A No. - 10550 of 2011 Petitioner :- Quisari Begum And Others Respondent :- Peer Mohammad Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- Anil Kumar Srivastava,Anil Kr. Srivastava
Hon'ble Manoj Kumar Gupta,J.
Amendment application is allowed.
Learned counsel for the petitioners is permitted to incorporate the amendment in the body of the petition during course of the day.
The instant petition is directed against order dated 18.1.2011 by which the revisional court in course of deciding SCC Revision No.64 of 1995 under Section 25 of the Provincial Small Cause Courts Act, 1887 has rejected the application 176-Ga filed by petitioners under Order 41 Rule 27 CPC for admitting additional evidence.
Abdul Razzaq (since deceased), the predecessor-in-interest of the petitioners instituted SCC Suit No.220 of 1986 against the defendant- respondent for eviction and recovery of arrears of rent. The foundation of the suit was a notice dated 18.2.1986 under Section 106 of the Transfer of Property Act allegedly served upon the defendant on 20.2.1986. The suit was dismissed by the trial court by judgement dated 4.2.1995. One of the grounds on which suit was dismissed was that the plaintiff in his cross- examination admitted that he was not aware of the contents of the notice. Consequently, the trial court held that he failed to prove the notice in accordance with law. It was also held that service of notice was also not proved. Accordingly, the suit was dismissed. Aggrieved thereby the original plaintiff filed a revision being SCC Revision No.64 of 1995. During pendency of the revision, the original plaintiff died and the petitioners were substituted in his place. They filed an application under Order 41 Rule 27 CPC in the year 2011 for taking on record as additional evidence the postal receipt evidencing sending of notice and carbon copy of notice dated 18.2.1986. The revisional court, by impugned order has rejected the said application observing that the explanation furnished for not being able to file these documents before the trial court, is not worthy of reliance. The explanation given in the application for not filing those documents before the trial court was alleged mistake on part of the previous counsel. The court has observed that the suit was filed in the year 1986 and the proceedings remained pending for 24 years and at such a belated stage it would not be in interest of justice to permit the petitioners to fill lacuna in their evidence under the garb of seeking permission to adduce additional evidence under Order 41 Rule 27 CPC.
After hearing counsel for the petitioners at considerable length, this Court finds absolutely no illegality in the view taken by the revisional court in rejecting the application for additional evidence. The carbon copy of the notice was in possession of the plaintiff. It was also basis of the suit. In case the same was necessary to prove the case, it ought to have been brought on record before the trial court. But it was deliberately withheld. Likewise, the postal receipt could also have been filed before the trial court as it was in custody of the plaintiff since very beginning. The revisional court is right in observing that had the plaintiff exercised due diligence, both the evidence which were in his possession and knowledge, could have been filed before the trial court.
The petition lacks merit and is accordingly dismissed.
(Manoj Kumar Gupta, J.) Order Date :- 28.2.2019 skv