Reserved Order IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (M/S) No. 347 of 2011 Chand Khan, Tailor. … Petitioner. Versus Rajendra Singh and others. … Respondents. Mr. T.A.Khan, Advocate, learned counsel for the petitioner. Mr. Lalit Belwal, Advocate, learned counsel for the respondents. Date April 22 , 2011. Hon’ble B.S.Verma, J. By means of this writ petition, the petitioner has sought a writ in the nature of certiorari quashing the order dated 3- 2-2011 (Annexure-1 to the writ petition) passed by Additional District Judge, 1st F.T.C. Nainital, in S.C.C. Revision No. 17 of 2009, whereby the revisional court has rejected the application bearing Nos. 22C and 32C filed by the petitioner. Petitioner has further prayed that the said applications (paper nos. 22-C and 32-C) may be allowed by this Court. 2. Brief facts giving rise to the present writ petition are that the petitioner is a tenant in one shop owned by respondent no.1. According to the petitioner, the building in question bearing Municipal No. 19-353, which is situated in Railway Bazar Haldwani district Nainital was owned by one Mohan Chandra Trivedi. One shop in the said building was rented out to the petitioner. The municipal number of the building in question has changed from time to time. The respondents, at the time when the building in question was purchased by respondent no.1, threatened the petitioner to evict him forcibly. Thereupon the petitioner filed a suit for a decree of permanent injunction against the respondent nos. 1 to 3. Ultimately, the suit was disposed of in terms of compromise arrived at between the parties by order dated 12-11- 2002. According to the petitioner, it was agreed between the 2 petitioner and respondent nos. 1 to that the petitioner continues to be tenant of one shop of house No. 7-128 and that the petitioner shall shift his possession from the said shop to a newly constructed shop in the same building. It was also agreed that this change would not affect the tenancy of the petitioner and the rent deed dated 10-12-1982 shall remain in force. Thereafter the petitioner was given possession of one shop by respondent no. 1 to 3, which is situate in the western side of the building in the ground floor. The petitioner continued to pay the rent to respondent no.1, who is father of respondent nos. 2 and 3 and father in law of respondent no.4. 3. According to the petitioner, as desired by the respondent no. 1, the petitioner paid advance rent for a period of fourteen months through cheque No. 05328 dated 5-11-2004 amounting to Rs. 8400-00, which was received by respondent no. 1 for himself and on behalf of other respondents on 6-11-2004. 4. Subsequently, the respondents herein filed S.C.C. Suit No. 1 of 2005 for recovery of arrears of rent and eviction. The petitioner contested the suit by filing his written statement. Both the parties led both documentary and oral evidence in support of their case before the Judge Small Cause Court/Civil Judge (Senior Division) Nainital (for short J.S.C.C.). 5. The learned J.S.C.C. after hearing the parties has held that the building in question is not governed by the provisions of U.P. Act No. 13 of 1972 and that the petitioner failed to prove that he had paid the amount through cheque to the respondent no. 1. It was also held that the tenancy of the petitioner was terminated by a legal notice under Section 106 of the Transfer of Property Act. The learned J.S.C.C. ultimately found that the petitioner defaulted in payment of rent and accordingly by order dated 18-6-2009, decreed the suit for recovery of arrears of rent of Rs. 11,440/- and damages @ Rs. 600/- per month from the date of suit till delivery of 3 possession along with 6% simple interest thereon and directed the petitioner to hand over possession within a period of 30 days from the date of judgment. 6. Aggrieved, the petitioner filed S.C.C. Revision No. 17 of 2009 before the revisional court. 7. During the pendency of revision, the petitioner- revisionist filed an application paper no. 22-C for adducing additional evidence under Order 41, Rule 27 C.P.C. and also moved an application paper no. 32-C with a prayer to appoint handwriting expert for giving his expert opinion. 8. The revisional court after hearing both the parties did not find favour with the petitioner-revisionist and dismissed both the applications by his order dated3-2-2011, which gave rise to the present writ petition. 9. The present writ petition has been filed mainly on the ground that the revisional court did not consider that for proper adjudication of the case, the applications moved by the petitioner should have been allowed and that the case of the petitioner is covered under Order 41, Rule 27(1)(b) of the Code of Civil Procedure. 10. On behalf of the respondents, counter affidavit has been filed. The affidavit is duly sworn in by Mr. Rajendra Singh, the respondent no.1. In the counter affidavit, the averments made in the writ petition have been categorically denied and in paragraph no. 12 of the counter affidavit the following averments have been made:- “12. That the contents of para no. 13 of the writ petition are not admitted, hence denied. However, it is relevant to mention here that the petitioner’s revision is already pending before the learned Revisional Court and thus the merits and demerits of the 4 judgment of the Court below has to be seen by the learned Revisional Court. The petitioner is again and again talking about statements what has been given in the Court below and referring the judgment of the learned Trial Court, which ipso facto means that the petitioner has moved the applications 22c and 32c just to fill the lacuna in its evidence, which cannot be allowed, as the provision of Order 41 Rule 27 of the CPC are not meant for filling up the lacuna and thus also the writ petition deserves to be dismissed with cost.” 11. The petitioner has filed rejoinder affidavit to the counter affidavit filed on behalf of the respondents. However, in the rejoinder affidavit, the plea raised in the counter affidavit has not been controverted in clear terms. 12. I have heard learned counsel for the parties and perused the material placed before this Court including the impugned order passed by the revisional court. 13. For a just decision of the case, a reference to the provision of Order 41, Rule 27 of the Code of Civil Procedure is necessary, which reads as under:- “27. Production of additional evidence in Appellate Court.-(1) The parties to an appeal shall not be 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 within his knowledge or could not, after exercise of 5 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 14. Learned counsel for the petitioner has vehemently contended that the revisional court was not justified in rejecting the applications of the petitioner because the revisional/appellate court may require any document to be produced to enable it to pronounce judgment or for any other substantial cause as has been proved under Order 41, Rule 27(1)(b) of the C.P.C. In support of his contention, learned counsel for the petitioner has placed reliance upon the case of Ram Chandra Vs. Brij Lal [2008(3) ARC 557] wherein the Lucknow Bench of the Allahabad High Court has held in paragraph 10 as under:- “10. The main function of the Court is to do substantial justice and it is because of this purpose that Order XLI, Rule 27 besides laying down certain conditions for the parties to adduce additional evidence at the appellate stage also provides that Appellate Court may also require any document to be product or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause as is provided in sub-rule (b) of Rule 27 of Order XLI of Code of Civil Procedure. In this case it is not disputed that it was a registered document, meaning thereby that the document was produced before the Public Officer who made certain endorsement also. Apart from the document, being the registered one, there is a photo also of the defendant appellant affixed on the agreement. Therefore, in these circumstances if any 6 party prays for permission to obtain expert opinion at appellate stage, then for arriving at a just decision and for doing substantial justice, if the appellate allows the application, in my opinion, it did not commit any error in doing so especially in view of Order XLI, Rule 27(b), CPC because for doing substantial justice as the same, in my opinion, was necessary. However, this could be done by the learned Appellate Court itself and there was no need of remanding the matter back.” 15. Reliance has also been placed upon the case of Shalimar Chemical Works Ltd. Vs. Surendra Oil & Dal Mills (Refineries) and others [2010 (3) ARC 603]. 16. Learned counsel for the petitioner further argued that the learned revisional court should have allowed the application of the petitioner for appointing the handwriting expert (paper no. 32C) in view of the provision of clause (b) of Rule 27 of Order 41 of the C.P.C. In support of his contention, learned counsel for the petitioner has placed reliance upon the Apex Court judgment in the case of Gurdev Singh and others Vs. Mehnga Ram and another [(1997) 6 Supreme Court Cases 507]. The Apex Court has inter alia held in paragraph no.2 as under:- “The appellate court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction.” 17. In reply, learned counsel for the respondents has submitted that the provisions of Order 41 Rule 27 C.P.C. are not intended to patch up the weak parts of the case of the petitioner before the trial court and fill up omission in the court of appeal. 7 Learned counsel has placed reliance on the Apex Court judgment in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs. [AIR 2008 Supreme Court 2139], wherein it has been held in paragraph 13 as under:- “13. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 C.P.C., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it ‘requires’ to enable it to pronounce judgment ‘or for any other substantial cause’. The scope of the rule, in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur & Ors. Vs. Lal Mohar Thakur & Ors. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows: “Under Cl.(1)(b) it is only where the appellate Court ‘requires’ it, (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.” 18. Thus, in view of the law laid down by the Apex Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by L.Rs. (supra), it is clear that the provision of clause (b) of sub-rule (1) of Rule 27 of Order 41 of the C.P.C. applies to the court of appeal and it is not for the petitioner to stress upon the court that such an additional evidence is necessary for pronouncement of judgment or for any other substantial cause. I am of the considered view that the appellate/revisional court has jurisdiction to exercise this discretion in appropriate case before 8 pronouncement of judgment. A party or litigant cannot compel the court to call for additional evidence. 19. The petitioner moved an application for additional evidence before the revisional court under Order 41, Rule 27 (1)(aa) of the Code of Civil Procedure. In view of the provision of sub-clause (aa) of sub-rule (1) of Rule 27 aforesaid, the mandatory requirement is that “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 within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed”. From a perusal of the contents of the application (paper no. 32-C) it is obvious that the petitioner failed to satisfy the requirement of the said rule. The argument of the learned counsel for the petitioner cannot be sustained, so far as it relates to application for appointment of handwriting expert (paper no. 32-C). This Court is of the view that the application paper no. 32-C has been rightly rejected by the revisional court. 20. Learned counsel for the petitioner has lastly contended that so far as the application under Order 41, Rule 27 C.P.C. (paper no. 22-C) is concerned, the petitioner confines his prayer to the judgment passed in Civil Suit No. 4 of 1996, Ravindra Mohan Trivedi Vs. Shree Chand Khan decided on 20-9-2004 whereby the suit of the plaintiff for recovery of money was decreed. According to the learned counsel for the petitioner, this suit (Civil Suit NO. 4 of 1996) was filed by the previous owner and landlord Ravindra Mohan Trivedi against the petitioner. In my view, the said document, which is certified copy of the judgment, is a public document and the same may be taken on record. So far as other documents are concerned, the learned counsel for the petitioner has not pressed the writ petition. These documents shall be returned to the petitioner as already directed by the revisional court. 9 21. For the reasons and discussion above, I am of the view that the revisional court has not committed any perversity or manifest error of law in rejecting the application (paper no. 32-C) moved by the petitioner. So far as rejection of petitioner’s application (paper no. 22-C) for taking the certified copy of the judgment passed in Civil Suit No. 4 of 1996, Ravindra Mohan Trivedi Vs. Shree Chand Khan decided on 20-9-2004 is concerned, the application paper no. 22-C stands partly allowed. 22. Accordingly, the writ petition deserves to be partly allowed. 23. The writ petition is partly allowed. The application of the petitioner (paper no. 22-C) stands partly allowed. Costs easy. The certified copy of the judgment in Civil Suit No. 4 of 1996, Ravindra Mohan Trivedi Vs. Shree Chand Khan decided on 20-9- 2004 be taken on record and rest of the documents filed by the petitioner in revisional court be returned to the petitioner. To that extent alone, the impugned order dated 3-2-2011 passed by the revsional court is modified. (B.S.Verma, J.) RCP