1. Sri Iqbal Ahmad, learned counsel for the petitioner contended that the court below at appellate stage has illegally allowed and admitted additional evidence adduced by respondents-landlords though it was not the case of respondents that the documents were not in their possession earlier and, therefore, could not be filed before Trial Court. He submitted that the Appellate Court has committed a patent error by entertaining aforesaid documents without satisfying the requirement of Order 41 Rule 27 C.P.C. He placed reliance on this Court's decision in Ramesh Chand Vs. The District Judge, Bijnor and others, 1978 ARC 435 and Nazmuddin Vs. Vth Additional District Judge, Bijnor and others, 1992(2) ARC 119.
2. In the present case the dispute relates to House No. 103/117 Colonelganj Kanpur Nagar wherein the petitioner is a tenant. The house in dispute was purchased by respondents from erstwhile owner vide sale deed dated 27.02.1990 and information to this effect was conveyed to petitioner-tenant on 22.07.1993. A notice under proviso to Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972") giving six months' time was given on 29.04.1994 and thereafter application for release of accommodation in question was filed, registered as Rent Case No. 33 of 1999. In the written statement the petitioner-tenant disputed notice dated 29.04.1994. The Trial Court while deciding the release application held that so far as six months' notice is concerned, the application was filed after nine years from the date of purchase of building in question, and hence in view of decision of this Court in Pramod Kumar and others Vs. Additional District Judge Hapur, Ghaziabad and others, 2009(2) ARC 96 there is no requirement of six months' notice. He accordingly proceeded to consider other aspects of the matter and thereafter allowed release application vide order dated 09.06.2010.
3. The petitioner thereafter preferred Rent Appeal No. 63 of 2010, which is pending in the Court of Additional District Judge, Court No. 10, Kanpur.
4. The respondents filed an application under Order 41 Rule 27 CPC to bring on record the carbon copy of notice dated 29.04.1994 stating that due to mistake of counsel's clerk, he filed photocopy of the said receipt but did not file carbon copy of the notice on the same date and for proper adjudication of matter, carbon copy of notice dated 29.04.1994 be taken on record.
5. The application was opposed by petitioner but by means of impugned order the Appellate Court has allowed application and admitted the additional evidence, i.e., carbon copy of notice on payment of cost of Rs. 300/-. It has observed that in the list of documents filed by respondents-landlords the photocopy of registry receipt dated 29.04.1994 is already there, the notice has also been pleaded in the release application, hence for proper adjudication of case, additional evidence is liable to be admitted.
6. Learned counsel for the petitioner submitted that unless the applicants could have shown before Appellate court as to why, despite due diligence, they could not place that evidence before Trial Court, the additional evidence could not have been accepted at appellate stage.
7. The submission is thoroughly misconceived.
8. The Appellate Court has enough powers to admit additional evidence under Order 41 rule 27 of CPC. It contemplates different situation empowering the court to admit additional evidence at appellate stage. Clause 1(b) of Rule 27 empowers the court to admit additional evidence for any other substantial cause. Time and again it has been held that in such matters hyper technical approach cannot be adopted. The reason has been given by applicants-respondents in the application and same has not been found to be false or incorrect in the light of pleadings which mentions about notice in the release application, and, filing of copy of registry receipt alongwith other documentary evidence. The Court has also said that consideration of document is necessary for a just decision. In such a case the requirement of sub-rule 1(aa), as such would not be attracted. But in the present case even that cannot be said since the reason has been given by applicants in their application filed before Appellate Court seeking indulgence for admitting additional evidence which has not been doubted by the court below.
9. In Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Mills (Refineries) and others, 2010(3) ARC 603 the Apex Court has said that production of additional evidence at appellate stage in interest of justice is perfectly valid.
10. So far as the decision in Nazmuddin (supra) is concerned, the Court found therein that additional evidence sought to be placed on record was to fill up the deficiency in evidence which was not earlier available or referred before the Trial Court but for the first time sought to be introduced at appellate stage and it is in these circumstances the Court held that such an additional evidence ought not be permitted.
11. In Ramesh Chand (supra) in para 13 of the judgment, this Court said, if the Appellate Court requires additional evidence to enable it to pronounce judgement or for any other substantial care, it should say so in its order. This is evidence from the following:
"13. . . . . It is true that under clause (b) of Order XLI rule 27 Civil Procedure code, a paper can be admitted in evidence, if the appellate court requires to be produced to enable it to pronounce the judgment or for any other substantial care. The appellate court should, however, in that case, say so in its order."
12. In the present case the Appellate Court has said on this aspect, as is evident from the followings:
"Atah In Paristhitiyon Me Wad Ke Uchit Nyay Nirnay Ke Liye Vipakshi Arvind Kumar Ka Prathna Patra 33 Ga Sweekar Kiye Jany Yogya Hai."
13. In the facts and circumstances of the case, in my view, the order impugned in this writ petition warrants no interference.
14. Dismissed.
Order Date :- 20.9.2012 AK