Hon'ble Amitava Lala, A.C.J. - (1.) THIS appeal is arising out of an order dated 14th December, 2009 passed by the learned Single Judge in Civil Misc. Writ Petition No. 3324 of 2009 (Pradeep Kumar v. Mohd. Saiful Ezaz Alam Khan and another).
(2.) THE fact remains that the appellant, the petitioner in the writ petition, happens to be a tenant of a shop situated in Mohalla Bhadwarganj, (Dhawan Book Depo) Station Road, Qasba Ujhani, District Budaun, of which the boundaries are that towards East- Government Road, West- Shop Rajiv Medical Store, North- Railway Road and South- Shop Redgal Photo Studio, which has got a dimension of 12Ft. x 7.5 Ft. On the upper storey of the shop, in which the appellant is a tenant, there is a vacant room, which belongs to the landlords-respondent Nos. 1 and 2. It has got a dimension of 20 Ft. x 10.5 Ft. THE dimension of the room on the upper storey is bigger than the dimension of the shop of the appellant on account of the fact that for constructing the room on the upper storey the balcony was also used. Concealing the dimensions of the room upon the upper storey of the shop, in which the appellant is a tenant and other accommodations belonging to the respondents' mother Smt. Nighat Fatima, an application was filed by the respondents for the ejectment of the appellant from the shop in dispute under Section 21(1) (a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (hereinafter in short called as the 'Act'), which was numbered as R.C.C. No. 1 of 2001. THE application was allowed by the Prescribed Authority vide order dated 2nd January, 2008, against which the appellant filed a rent appeal, being Rent Appeal No. 12 of 2008, before the appellate authority under Section 22 of the Act. When the appeal was pending, the appellant came to the knowledge that the respondents had concealed the existence of several accommodations in which they could open their shop for the sale of the photostat copies machine, computer, etc. THE appellant further came to the knowledge that the mother of the respondents Smt. Nighat Fatima has also been shown to be the owner of one big accommodation, which is to the south of the premises, in which the appellant happens to be a tenant. He further knew that in the name of a sister of the respondents, namely Wasim Nighat, who was a widow and was a teacher in Asarfi Devi Nagar Palika Kanya Inter College, Ujhani, Budaun, a land was purchased by the respondent Nos. 1 and 2 and on the said land two shutters' shops were constructed when the appeal itself was pending before the appropriate authority. After coming to know aforesaid facts, the appellant subsequently filed an application, being numbered as 28 Ga, for the admission of some evidence as an additional evidence, to which a reply was also filed on behalf of the respondent Nos. 1 and 2 and this was numbered as 39 Ga. THE appellant also filed an application for adducing some additional evidence, which was numbered as paper No. 51 Ga. THE appellant also filed a list of evidence, which was numbered as paper No. 53 Ga. A reply to the appellant's application numbered as 51 Ga for adducing additional evidence was also filed on behalf of the respondent Nos. 1 and 2, to which a replication was also filed by the appellant. THE appellant also filed an application for issuing a commission in order to ascertain the dimensions of the room, which exists on the upper storey of the shop, in which the appellant is a tenant, and also for inspecting a shop, which apparently belongs to the respondent Nos. 1 and 2 but has been cleverly shown to be of the mother of the respondent Nos. 1 and 2, Smt. Nighat Fatima. A reply to the appellant's application for issuing a commission was filed on behalf of the respondent Nos. 1 and 2, which was numbered as paper No. 44 Ga, against which a replication was also filed by the appellant, which was numbered as paper No. 49 Ga. In short, the appellant's case has been that he had no knowledge of the fact earlier that there were other shops belonging to the respondent Nos. 1 and 2, which were in vacant position and further they were having substantial dimensions in which the respondent Nos. 1 and 2 could have opened their shops for the sale of photostat copies machine, computer etc. and thus, there was no bona fide need of the respondent Nos. 1 and 2. Even if the affidavit of the appellant was admitted as an evidence then the case of the appellant would have been fully proved and it would have been clear that the respondent Nos. 1 and 2 had absolutely no bona fide need and they purposely concealed the existence of certain accommodations, which were erroneously and cleverly shown to be belonging to their mother or their sister. THE appellant earlier had absolutely no knowledge about the existence of the other accommodations with the respondent Nos. 1 and 2 and further the accommodations in regard to the shop, which existed in the name of the sister of the respondent Nos. 1 and 2, were constructed after the decision by the Prescribed Authority. If an inspection would have been done by the Amin Commissioner then everything would have been clear. However, the appellate Court vide order dated 14th January, 2009 held that the question as to whether the additional evidence could be filed or not and the inspection of the accommodations in possession of the respondent Nos. 1 and 2 by the Amin Commissioner could be done, will be decided at the time of hearing of the appeal itself. According to the appellant, the view of the appellate authority is absolutely erroneous. It was necessary for the appellate authority to have obtained a report in regard to the existence of all the accommodations belonging to the respondent Nos. 1 and 2 before hearing and decision of the appeal. If a commission is issued after hearing of the appeal and if it is found that the respondent Nos. 1 and 2 are in possession of additional accommodations then it would be of no use to the appellant. In such circumstances, the Commission has to be issued by appellate authority before hearing the appeal filed by the appellant. It was also necessary for the admission of the additional evidence before hearing of the appeal. THE admission of the additional evidence could not wait till the hearing is done. After hearing was done then the additional evidence, which the appellant wanted to lead as additional evidence, would be of no utility. In such circumstances, it was necessary for the appellate authority to consider as to whether the additional evidence was to be led and admitted before hearing of the appeal. THE appellate authority thus erred in not considering the same. It was also necessary for the appellate Court to know the actual accommodations available with the respondent Nos. 1 and 2 after getting a report from the Amin Commissioner before hearing and decision of the appeal. Till this date the appeal has not been heard and decided and it is still pending. Against this background, the appellant preferred Civil Misc. Writ Petition No, 3324 of 2009 before this High Court, which was dismissed by the learned Single Judge by its order dated 14th December, 2009. The operative portion of the order of the learned Single is as follows: "I have considered the submissions made on behalf of the parties and have perused the record. As contended by the petitioner that in view of Section 38 of Act No. XII of 1972, the Act will have over-riding effect upon the Transfer of Property Act and Civil Procedure Code. But from the perusal it is clear that it will have over-riding effect notwithstanding anything inconsistent therewith, meaning thereby if any provision is inconsistent with Act No. Act No. XIII of 1972, then in that case the Rent Control Act will have over-riding effect. But the contention of the petitioner to this effect that Order 41 Rule 27 will have no effect in a proceeding under Act XIII of cannot be accepted in view of the settled principles of law as discussed in the order impugned. In 2008 (7) SC 136, M/s Eastern Equipment and Sales Ltd. v. Ing. Yash Kumar Khanna, the Apex Court while considering the provisions under Order41 Rule 27 C.P.C. It has been held that in case some additional evidence is filed before the appellate Court, it has to be decided with the appeal. In 2000 (2) ARC 431, Punjab and Sindh Bank v. VII Additional District Judge, Bulandshahr, this Court has held that in appeal under section 22 of Act No. XIII of 1972, the appellate Court has to follow the provisions of Order 41 Rule 27 C.P.C. In such view of the matter, the appellate Court has considered the submissions of the petitioner and has held that the application for additional evidence of the petitioner will be considered at the time of hearing of the appeal. The judgments cited by the learned counsel for the petitioner relate regarding that in case the application is rejected for additional evidence, in that circumstances, the Apex Court has held that it was not justified and the application ought to have been decided with the appeal. As regards the submission of the learned counsel for the petitioner regarding appointment of Commissioner to inspect the premises of the landlord, all the judgments cited by the learned counsel for the petitioner relate to when the application was filed at the initial stage. This is not the case of the petitioner that as regards the availability of the premises, if any fact subsequent to filing the application was not in his knowledge, it came after filing the appeal. Further it is to be noted that apart from all the submissions made by the petitioner, this writ petition can be treated to be premature in view of the fact that applications of the petitioner for appointment of the commissioner as well as the additional evidence is still pending for consideration and the appellate Court has passed an order that it will be considered at the time of hearing. Therefore, in my opinion, it can easily be inferred that the writ petition can be treated to be premature without any order impugned. In view of the aforesaid fact the writ petition being devoid of merit is hereby dismissed. No order is passed as to costs. The appellate Court is directed to decide the appeal filed by the petitioner within a period of six months from the date of production of certified copy of this order before him." Being aggrieved from the aforesaid order of the learned Single Judge, the appellant has filed the present special appeal stating that unless and until the subsequent events, which could affect the decision of the appeal, were brought on the record first, no arguments could be advanced in an effective manner. Mere reference of the subsequent events without being backed by the evidence on the record would be only a formality. The applications for adducing the additional evidence and for issuing a Commission were based upon Section 34 of the Act, as the Appellate Court was free to take evidence as if it was trying a regular suit. It was incumbent upon the appellate Court to get the subsequent facts established and then hear the appeal. Adducing of the evidence and issuing of the Commission both could not be done at the same time. The applications for adducing the additional evidence and for issuance of the Commission were filed on account of the fact that the new facts came into existence after the decision of the case by the Prescribed Authority on 2nd January, 2008.
(3.) MR. S.R. Pandey, learned Counsel appearing for the respondents- landlords, has raised a preliminary objection with regard to maintainability of the special appeal. He submitted that the present special appeal is not maintainable in view of the provisions of Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 (hereinafter in short called as the 'Rules of the Court'). There is also a office report to the effect that the appeal is not maintainable. In support of his contentions, MR. Pandey has relied upon various judgments Sadarshan Singh Bedi v. Additional District Magistrate/Rent Control and Eviction Officer, Varanasi and others, 1993 (2) AWC 916; Vajara Yojna Seed Farm, Kalyanpur (M/s.) and others v. Presiding Officer, Labour Court-II, U.P, Kanpur and another, 2003 (1) UPLBEC 496 : 2003 (1) ESC 492; Hasib Ahamad v. State of U. P. and others, 2008 (6) ADJ 757 and Sheet Gupta v. State of U.P. and others, 2010 (1) ADJ 1 (FB). In Sadarshan Singh Bedi (supra) a Division Bench of this Court has held that the maintainability of the special appeal depends upon the answer to the question as to whether the Rent Control and Eviction Officer acts as a tribunal while he determines the question regarding vacancy of a building under the provisions of the Act. After vivid discussion, it was further held that the Rent Control and Eviction Officer has to determine the objections as provided under Rule 8 (2) of the U.R Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972. The provisions of determination casts duty upon the Rent Control and Eviction Officer to act judicially after considering the pleadings of the parties and after affording them opportunity to lead evidence and further to pass a reasoned order. From the scheme of the Act and the functions and duties cast upon the Rent Control and Eviction Officer leaves no doubt that he acts as a tribunal, therefore, the special appeal is not maintainable. In Vajara Yojna Seed Farm, Kalyanpur (supra) it was again held by a Division Bench of this Court that as per U.P. High Court (Abolition of Letters Patent Appeals) Act, 1962, as amended in 1981, and Chapter VIII Rule 5 of the Rules of the Court, special appeal is excluded from the followings : "(i) Judgment of one Judge passed in the exercise of appellate jurisdiction in respect of a decree or order made by a Court subject to the Superintendence of the Court. (ii) Judgment of one Judge in the exercise of revisional jurisdiction. (iii) Judgment of one Judge made in the exercise of its power of Superintendence. (iv) Judgment of one Judge made in the exercise of criminal jurisdiction. (v) Judgment of order of one Judge made in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award of a Tribunal, Court or Statutory Arbitrator made or purported to be more in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in State List or Concurrent List. (vi) Judgment or order of one Judge made in exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution in respect of any judgment, order or award by the Court or any officer or authority made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any Uttar Pradesh Act or under any Central Act." ;