IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 258 of 2007 (M/S) [ Marwari Panchayati Dharamshala Registered Society through its Secretary Tara Chand Jalan, Through its power of attorney holder Sh. Hira Lal Sharma s/o late Sh. Suraj Mal Sharma Manager Marwari Panchayati Dharamshala, Railway Road, Hardwar, District Hardwar. ...…………. Petitioner Versus 1. III F.T.C. / A.D.J., Hardwar. 2. Smt. Asha Devi W/o Sh. Balram R/o Marwari Panchayati Dharamshala Railway Road, Hardwar, Distt. Hardwar. ...………… Respondents Mr. Munish Bhardwaj, Advocate for the petitioner. None present for respondent No. 2. Hon’ble Prafulla C. Pant, J. Mr. Munish Bhardwaj, Advocate for the petitioner. None present for respondent No. 2, even after service of notice, on said party. 2) Heard learned counsel for the petitioner. 2 3) By means of this petition, moved under Article 226 read with Article 227 of the Constitution of India, the petitioner has sought writ in the nature of certiorari, quashing the order dated 14.03.2007, passed by respondent No. 1 (3 F.T.C. / Addl. District Judge, Haridwar), in Civil Appeal No. 19 of 2002, whereby the application 31-C, moved by the appellant (present petitioner) was dismissed. 4) Brief facts of the case, giving rise to this petition, are that respondent No. 2 Smt. Asha Devi (tenant) instituted Suit No. 204 of 1987, before the trial court against the petitioner. Thereafter, Suit No. 70 of 1990, was filed by the present petitioner for eviction of Smt. Asha Devi (respondent No. 2) from the premises in question. Since, the controversy involved in the two suits were similar, the trial court consolidated the two suits and directed on 09.09.1991, that Suit No. 204 of 1987, instituted by tenant (respondent No. 2) shall be the leading case. However, the respondent No. 2 got her suit cleverly dismissed for not producing the evidence. The petitioner’s case is that since, the Suit No. 204 of 1987 was the leading case, the documentary evidence was adduced by the landlord in said case and could not be filed in Suit No. 70 of 1990. The Suit No. 70 of 1990 filed by the landlord was dismissed as there was no documentary evidence in said suit. Aggrieved by said order, the petitioner (landlord) filed Civil 3 Appeal No. 19 of 2002 against the dismissal of Suit No. 17 of 1990. 5) During the pendency of the appeal the plaintiff (present petitioner) filed Application 31-C seeking permission to file the documentary evidence in support of his case under Order 41 Rule 27 of the Code of Civil Procedure, 1908. The trial court vide impugned order dated 14.03.2007, rejected said application on the ground that the appellant could have filed these papers before the trial court, in the suit. 6) Learned counsel for the petitioner submitted that the appellate court (3 F.T.C. / Addl. District Judge, Haridwar) has committed error of law in rejecting the Application 31-C, as Suit No. 204 of 1987 filed by the tendnat was the leading case, and for that reason the documentary evidence could not be filed in Suit No. 70 of 1990, which was a subsequent one. 7) Having heard learned counsel for the petitioner and after going through the impugned order, and other papers on record, this Court is of the view that the lower appellate court (3 F.T.C. / Addl. District Judge, Haridwar) had committed grave error of law in rejecting the Application 31-C, moved on behalf of the appellant (present petitioner) in Civil Appeal No. 19 of 2002, for the reason that it is apparent that the two contesting parties filed two separate suits and both the 4 suits were got consolidated vide order dated 09.09.1991. The tenant’s suit being the previous one, the trial court made it a leading case, in which the parties led evidence. The trial court has erred in detecting that cleverly the tenant (respondent No. 2), who instituted the previous suit No. 204 of 1987, got said suit dismissed by not producing her evidence. As such, the petitioner (landlord) got trapped, and subsequently, his suit was dismissed on the ground that he had not filed the documentary evidence in support of his case (infact which had already been filed by him in Suit No. 204 of 1987). In the opinion of this Court it was an ideal case for the appellate court to allow the Application 31-C under Order 41 Rule 27 of the Code, as the petitioner (landlord) got deprived of filing the same, as the suit filed by the petitioner got consolidated with that of the tenant, and the tenant’s suit was made leading case. 8) For the reasons as discussed above, this writ petition is allowed. The impugned order dated 14.03.2007, passed by the 3 F.T.C. / Addl. District Judge, Haridwar, in Civil Appeal No. 19 of 2002, is quashed. The Application 31-C stands allowed. No order as to costs. (Prafulla C. Pant, J.) Dt. August 21, 2009. H. Negi