N. D. Ojha, J. - (1.) THIS special appeal has been filed against the judgment of a learned single Judge dismissing a writ peti tion filed by the appellant. The dispute giving rise to this special appeal is in regard to certain plots of land situate in village Munderwa Tahsil and District Basti. The aforesaid village was brought under consoli dation operation and the name of the appel lant stood recorded in the basic year. Rupai respondent No. 6 filed an objection that of the plots in dispute he was a co-tenant along with Badal, that Badal died issueless and consequently he alone was entitled to be recorded over the said plots. The case of the appellant on the other hand was that of the plots in dispute Badal was exclusive tenant and he being the adopted son of Badal inherited the plots in dispute exclusive ly on the death of Badal and that Rupai respondent had no concern with these plots. The Consolidation Officer dismissed the ob jection of Rupai. On appeal however the Settlement Officer Consolidation directed the name of Rupai to be recorded along with the name of the appellant. Two revisions were filed against the order of the Settle ment Officer Consolidation, one by the appellant and the other by Rupai. During the pendency of these revisions the appellant filed certain documents along with an appli cation with the prayer that those documents be admitted as additional evidence. The said application was however dismissed by the Deputy Director, Consolidation on July 27, 1963 and both the revisions were also dis missed. The appellant thereupon filed a writ petition in this Court which as already pointed out above was dismissed by a learn ed single Judge. The present Special Appeal has been filed against the aforesaid judg ment.
(2.) THE main contention of the ap pellant before us was that the documents which were sought to be filed before the Deputy Director Consolidation as additional evidence were very material for a correct and proper decision of the case and the Deputy Director, Consolidation committed a manifest error of law and in fact refused to exercise jurisdiction vested in him in reject ing the said application. A certified copy of the order dated July 27, 1963 passed by the Deputy Director, Consolidation dismissing the application for additional evidence was filed in the writ petition and from its peru sal it appears that the said application was dismissed on two grounds:- 1. That the admission of the documents at such a late stage will materially change the case of the parties; and 2. that in Section 48 of the Consolida tion of Holdings Act there was no provision for entertaining fresh evidence at the revisional stage. The learned Counsel for Rupai respondent urged that the Deputy Director, Consolida tion was right in dismissing the application for additional evidence and that both the grounds given by him for dismissing it were justified. He raised certain other technical objections which we shall deal later. In so far as the first ground mentioned by the Deputy Director, Consolidation for dismiss ing the application aforesaid is concerned we are of the opinion that the Deputy Direc tor, Consolidation committed a manifest error of law in taking the view that by fil ing the documents the appellant wanted to materially change his case. As already pointed out above the consistent case of the appellant throughout was that of the plots in dispute Badal was the exclusive tenant and he being the adopted son of Badal inherited these plots and his name was rightly recorded in the village papers. Copies of the documents sought to be filed as additional evidence before the Deputy Director Consolidation have been filed along with the writ petition. We have perused these documents. Two of such documents are a compromise application in a suit and the decree passed on its basis. The other document is copy of an application made by Rupai respondent himself as guardian of the appellant who was then minor for mutating his name over the plots in dispute. The earlier two documents were sought to be fil ed to show that on partition effected by compromise the plots in dispute were allot ted exclusively in the share of Jasai father of Badal. The said compromise was filed in a suit under Section 37 of the Agra Ten ancy Act, 1926 for partition of holdings between Jasai father of Badal on the one hand and Ghure father of respondent Rupai on the other. The third document namely the application for mutation contains aver ments that the plots in dispute belonged to Badal, that the appellant was adopted son of Badal and was thus entitled to be mutat ed over these plots. These documents were apparently filed as evidence of the fact that of the plots in dispute Badal was exclusive tenant and the appellant being his adopted son rightly inherited these plots exclusively. This has been the case of the appellant from the inception and if in order to prove this case he wanted to file the documents afore said it cannot be said by any stretch of ima gination that by filing these documents the appellant wanted to set up a new case at the revisional stage. The first ground on which these documents were rejected there fore clearly is not sustainable. Now we propose to deal with the second ground on which the aforesaid ap plication was dismissed namely additional evidence could not be admitted at the revi sional stage. Learned Counel for Rupai respondent on the authority of State of Kerala v. K. M. C. Abdullah, AIR 1965 SC 1585, urged that before the Deputy Director, Consolidation could accept additional evi dence he had first to consider the case with out such evidence and to independently come to a finding that the requirements of Sec tion 48 of the Consolidation of Holdings Act were made out and it was only if he was satisfied that grounds for interference under Section 48 were made out that he could direct further inquiry by accepting additional evidence. We have perused that judgment with care but are unable to subs cribe to the view enunciated by the learned counsel for the respondent. In the afore said case their Lordships were considering the scope of Section 12 of the Madras Gene ral Sales Tax Act (Act IX of 1939). Sub-clause (2) of Section 12 provided that the Deputy Commissioner may call for and exa mine the record of any order passed or pro ceeding recorded under the provisions of that Act by any officer subordinate to him for the purpose of satisfying himself as to the legality or the propriety of such order or as to the irregularity of such proceeding and may pass such order with respect thereto as he thinks fit. It was held that power to pass such order as the revisional autho rity thinks fit may in some cases include power to make or direct such further in quiry as the Deputy Commissioner may find necessary for rectifying the illegality or impropriety of the order or irregularity in the proceeding and that it was not right baldly to propound that in passing an order in the exercise of his revisional jurisdiction the De puty Commissioner must in all cases be res tricted to the record maintained by the Offi cer subordinate to him and can never make inquiry outside that record. It was further held that it could not be said that a provi sion which confers upon the appellate or revising authority power to make such en quiry as such appellate or revising authority considers necessary in itself amounts to en larging the revisional or appellate jurisdic tion. What is the true import of the afore said decision is to be found from a subse quent decision of the Supreme Court itself namely Swastic Oil Mills Ltd. v. H. B. Munshi, AIR 1968 SC 843, wherein it was held: "Whenever a power is conferred on an authority to revise an order the authority is entitled to examine the correctness, legality and propriety of the order and to pass such suitable order as the authority may think fit in the circumstances of the particular case before it. When exercising such powers, there is no reason why the authority should not be entitled to hold an enquiry or direct an enquiry to be held and for that purpose, admit additional material." Referring to the aforesaid case it was fur ther held: "In fact in Section 12 (2) of the Madras General Sales Tax Act the Deputy Commis sioner when exercising his powers, was to call for the record of the order or proceed ing before passing any order which he thought fit, so that there was an expression used which could have been interpreted as limiting his powers to the examination of the record only without holding any further en quiry and, yet, this Court held that the Deputy Commissioner could not be restrict ed to the record and was empowered to make an enquiry outside that record."
(3.) THE question in regard to the jurisdiction of a revising authority to accept additional evidence again came up for consi deration before the Supreme Court in Arbind Kumar Singh v. Nand Kishore Prasad, AIR 1968 SC 1227. In the said case the scope of the powers contained in Section 64-A of the Motor Vehicles Act, 1939 as amended by Bihar Act XVII of 1950 came up for consideration. It was held: "The expression 'pass such orders as it thinks fit' is not restricted to the passing of orders which are final in character. If for the purpose of doing complete justice be tween the parties the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may call for such evidence. There is no bar in the Act or the rules against an ap pellate or revising authority taking into con sideration additional evidence brought on the record, if the authority requires addi tional evidence to be brought on the record or allows it to be brought on the record to do complete justice between the parties." ;