K. C. Agarwal, J. - (1.) QUARTER No. 49 of House No. 101/288 Colonel Ganj, Kanpur was previously ni the tenancy of one Mohd. Yakub. According to the allegation set out in the writ petition the petitioner was living with Yaqub in the said house. An application was filed by Jalal Uddin respondent no. 1 for its allotment sometime in 1971 on the ground that Yaqub had left the premises and as there was a vacancy in respect of the aforesaid quarter, the same may be allotted to him. The Rent Control and Eviction Officer allotted the premises to Jalal Uddin, respondent no. 1 on 22-2-1972.
(2.) HAJI Abdul Samad, petitioner, thereafter filed an objection for the cancellation of the allotment order on the ground that there was no vacancy as he was living in the premises along with Yaqub. He asserted in the said objection that he had been paying rent to the landlord in his own right, therefore, the allotment order made in favour of Jalal Uddin on 22-2-1972, on the ground that there was a vacancy, was invalid. It, however, appears that in pursuance of the allotment order Jalal Uddin, respondent no. 1, also filed an application under Section 7-A of the Old Act for getting the possession against the petitioner. These two matters were heard by the Rent Control and Eviction Officer and were decided by means of a common judgment. By the said order the Rent Control and Eviction Officer found that the allegation of HAJI Abdul Samad that there was no vacancy in the premises was incorrect and that the allotment order had been lawfully passed in favour of respondent no. 1, so he was entitled to get the possession. Aggrieved the petitioner went in appeal before the District Judge, Kanpur under Section 18 of U. P. Act No. 13 of 1972. The appeal has been dismissed. Against the dismissal of the appeal the present writ petition has been filed. The learned counsel for the petitioner contended that the above premises was in his possession since long and that the learned District Judge committed an error in not giving the benefit to Section 14 to him. It appears to me that the aforesaid Section 14 could not be pressed into service in the instant case as one application under Section 7-A was pending on the date of the commencement of the U. P. Act No. 13 of 1972. One of the requirements to be fulfilled in order to get the benefit of the aforesaid section is that any proceeding under Section 7-A of the Old Act must be not pending as against the person claiming its benefit. As in the instant case such a proceeding was pending the petitioner cannot get its advantage. The second submission made by the counsel for the petitioner was that the learned District Judge committed an error of jurisdiction in not admitting additional evidence filed before him. He submitted that Section 10 (2) read with Section 18 of the New Act conferred unfettered and un-restricted powers to admit additional evidence in appeal by appellate authority created under this statute and as the learned District Judge did not exercise its powers, the order rendered by him was illegal. I have given my anxious consideration to the above argument but I am unable to uphold the same. It is no doubt true that Section 10 (2) of the Act does not place any restriction on the power of the appellate authority but such a restriction is implied inasmuch as the appellate court could not be treated like the original court. A distinction has got to be maintained between the powers of an original court and that of an appellate court. An appellate court connot function properly in case it is held that it has got the same powers to admit evidence as the original court has. The power given to an appellate court, therefore, will have to be exercised with circumspection. Moreover, the word 'may' used in Section 10 is also indicative of the fact that the power given to appellate court is discretionary.
(3.) HENCE the High Court will not be justified in interfering with the refusal to admit additional evidence. On being asked the learned counsel could only point out that those letters which were filed in appeal could not be collected by the petitioner for being made available at the initial stage of the case. This to my mind is hardly a circumstance which could justify the exercise of jurisdiction in favour of the petitioner in appeal. I am, therefore, unable to find that the learned District Judge, Kanpur committed an error of jurisdiction or committed any mistake apparent on the face of the record. In the result, the writ petition fails and is dismissed. No order as to costs. The stay order is discharged. Petition dismissed.;