R.M.SAHAI, J. - (1.) AGGRIEVED by order of appellate authority permitting opposite party to file affidavit of Ali Haider, her brother and owner to prove that he had gifted the property in dispute to her in proceedings arising out of release application filed under Section 21(1)(a) of U.P. Act XIII of 1972, petitioner has come to this Court nd challenges jurisdiction of appellate authority to accept any additional evidence in appeal. In alternative is submitted that even if it could have been accepted then it could be accepted within four corners of Order 41, Rule 27 of C.P.C. the exercise of power was arbitrary as the evidence was accepted only for strengthening the case of opposite party.
(2.) NONE of the submissions advanced by the learned counsel have any merit. As regards power of appellate authority to accept additional evidence it is provided by the statute itself. Section 22 permits any person aggrieved by an order under Sections 21 to 24 to prefer appeal against it to the District Judge What power shall be exercised by him while hearing such appeal is to be gathered from Section 10 as provisions of that Section have mutatis mutandis been applied to Section 22 and sub-section (2) of Section 10 read as under : "The appellate authority may confirm vary or rescind the order or remand the case to the District Magistrate for re-hearing, and may also take any additional evidence, and pending its decision, stayed the operation of the order under appeal on such terms, if any, as thinks fit." The alternative submission of learned counsel also has no substance. Order 41, Rule 27 does not apply to proceedings under Act XIII of 1972 as such. It cannot be applied even by virtue of Section 34 which vest power of Civil Court on appellate authority hearing appeals only a respect of matters enumerated in its various sub-clause.
(3.) EVEN assuming as held in Radhey Sham v. IInd Additional District Judge and others, 1980 All Rent Cases 590, that principles of Order 41, Rule 27, C.P.C. applied the order does not suffer from any error as appellate authority accepted the evidence for pronouncing judgment on the bonafide need of landlord and the comparative hardship of the two. The arguments that the Court while recording this finding acted arbitrarily also cannot be accepted. It cannot be disputed that the landlady had filed a suit for eviction nor it is disputed that Ali Haider, her brother was its earlier owner. As the link evidence to establish that she subsequently became landholder was not available on record she filed the application for producing the same in shape of additional evidence. The appellate authority felt that in order to decide the dispute effectively it was necessary to accept this evidence. In doing so the appellate authority did not travel beyond the objective of the Act, namely, expeditious disposal of the cases. Reliance has been placed on K. Venkata Ramiah v. Seetharama Raddy, AIR 1963 SC 1526. This decision in fact supports the opposite party rather the petitioner. The dispute was about the age of the respondent and for proving it the respondent produced certain additional evidence in the High Court which was accepted. The Supreme Court held that as the Court accepted the evidence for deciding the controversy effectively it was in accordance with law. As regard Sunder Lal and Sons. v. Bharat Handicrafts Pvt. Ltd., AIR 1968 SC 406, additional evidence was sought to be produced in the Supreme Court. It was not accepted as the Court held that it did not require the evidence for pronouncing the judgment. The principle laid down in the decision this will apply to the present case where the appellate authority categorically found that the evidence of Ali Haider was necessary to decide the controversy in dispute.;