- (1.) MRS. Poonam Srivastava, J. Heard Sri Manish Goyal, learned Counsel for the tenant/revisionist and Sri M. K. Gupta Advocate for the landlord-respondents.
(2.) THE instant revision has come after remand from the Hon'ble Supreme Court. THE respondent landlord instituted a J. S. C. C. Suit for eviction. THE tenant preferred a Civil Revision before this Court which was allowed. THE order was challenged in the Apex Court vide Civil Appeal No. 1460 of 2005 arising out of SLP (C) No. 22387 of 2001, Sushila v. Mundri Lal & Anr. THE Apex Court has remanded the matter for the reason that the civil revision was allowed by this Court placing reliance on a judgment in the case of Vineet Kumar v. Mangal Sain Wadhera, 1984 (3) SCC 352, which stood overruled by a larger Bench, in the case of Suresh Chandra v. Gulam Chisti, (1990) SCC 593. Two subsequent decisions of the Apex Court had taken similar view. While remitting the case to this Court, an observation was made that if other questions which arise for consideration in the revision before the High Court, parties shall be heard and liberty was also given that this Court has discretion to remit the matter to the trial Court if it so requires. Sri Manish Goyal has filed an application under Order XLI, Rule 27 read with Section 151 C. P. C. to bring on record certain documents as additional evidence at this stage. The dispute relates to a shop which is part of House No. 177- Abu Lane, Meerut Cantt. which was purchased by the land lady in the year 1969 by means of a registered sale deed. The suit proceeded on the basis that the shop in question was constructed after the purchase and it is a new construction, therefore, the provisions of U. P. Act No. 13 of 1972 will not be applicable. The trial Court agreed with the contention of the contesting respondents and recorded a finding that the disputed shop which is the part of the house was constructed subsequently and, therefore, it does not come within the clutches of the Rent Control Act (hereinafter referred to as the Act ). Counsel for the tenant-revisionist has moved this application stating that he has been legally advised to search out documents, whereby it can be proved that the shop in dispute is an old construction and much before the enforcement of the Act. The trial Court decided the question of applicability of the Act against the tenant. The revisionist made attempts to trace out such document which could be adduced in evidence by him in support of his contention that the building is old and the provisions of the Act No. 13 of 1972 are applicable. On this legal advise the applicant searched out the record of the Cantonment Board, Meerut and came across a sanctioned map, also an application dated 3-9-1954 moved by previous landlady Smt. Pushpa Devi alongwith one proposed map for obtaining permission to construct a shop. The permission was granted by the Cantonment Board authority on 8-10-1954. The tenant applied for a copy of the map on 5-2-1998 which was issued to him on 3-3-1998. The tenant proposes to adduce this map and the said application as an additional evidence. Besides, sale-deed was executed by Smt. Pushpa Devi in favour of the landlady in the year 1969 which mentions that the building purchased, was a double storied building. A rejoinder affidavit in case No. 64 of 1999, Smt. Sushila Rani v. Smt. Saroj Mittal, filed by the landlady, where it is admitted that she has made substantial additions and alteration and thereafter let out the portion of the ground floor to one Mundri Lal (revisionist ). The year of alteration was given as 1974-75. All these documents are proposed to be filed as additional evidence. In paragraph 16 of the affidavit filed in support of the said application, it is mentioned that certified copy has been obtained recently and therefore, these documents could not be filed earlier. Sri Manish Goyal has placed reliance on a Division Bench decision of this Court in the case of Virendra Singh Kushwaha v. VIIth Additional District Judge, Agra & Ors. , 1996 (2) JCLR 69 (All) : ARC 1996 (2) 108. The Division Bench of this Court was of the view that the Court may admit additional evidence in exercise of inherent powers in a revision under Section 25 of the Small Causes Act. An earlier Division Bench decision of this Court in the case of Babu Ram v. Additional District Judge, Dehradun & Ors. , 1983 (1) ARC 15, was taken into consideration while allowing additional evidence in JSCC Revision.
(3.) SRI M. K. Gupta has emphatically disputed the arguments of SRI Manish Goyal regarding permission to adduce additional evidence at this stage. The objections are many folds. The first objection is that the documents sought to be brought on record were in existence when the suit was pending before the trial Court and no effort was made by the tenant to bring the document on record. Emphasis is laid on a clear admission made in paragraphs 7 and 8 of the affidavit that the tenant-revisionist thought of collecting additional evidence on the basis of legal advice given to him after the suit was decreed; meaning thereby it was to fill up the lacuna in the judgment of Judge Small Causes Court. The evidence sought to be adduced now is on the advice of his Counsel to somehow meet out the findings arrived at by the Court below. Besides, it is also pointed out, in case these documents are permitted to be brought on record, it would lead to factual controversy. Each document which the revisionist desires to bring on record at this stage, has specifically been assailed by the Counsel for the contesting respondents. SRI M. K. Gupta has submitted that the sanctioned map relates to House Nos. 177 and 177/a while the disputed property bears Municipal No. 177-E Raja Rati Ram who was original owner of the entire property and sold it to Smt. Pushpa Devi and her two sons Chandra Prakash and Vijay Prakash Jain by a registered sale-deed on 21-5-1965. Thereafter a family settlement took place in Original Suit No. 67 of 1969 and property bearing Municipal Nos. 177-E and 177 F came in the share of Smt. Pushpa Devi, copy of the said plaint has been annexed as Annexure-2 to the counter-affidavit filed by respondent. The other portion of the building bearing Municipal Nos. 177 and 177-A went to other co-sharers which was subsequently transferred by registered sale-deed dated 7-12-1970 in favour of Anil Jain and Anand Jain. This portion is the same portion in respect of which the map dated 8-10-1954 issued by the Cantonment Board is being relied upon. The sale-deed has also been annexed as Annexure CA- 3. It is also not disputed that at the time when the landlady purchased the house in question, it was two storied building but substantial additions and alterations were made by the answering respondents and ground floor was converted into a non-residential area by replacing the roof with four RCC Beams and by constructing a bathroom and latrine after removing the passage and the store and earlier the five arches were removed which was replaced by pillars and beams. All these new constructions were taken into consideration to arrive at a conclusion by the trial Court that the constructions are new. It was on account of new construction, the valuation of the property escalated w. e. f 1-4- 1978. SRI Manish Goyal has also tried to adduce Chalani Report which is an order of the Judicial Magistrate dated 16-1-1975 which relates to major construction of the first floor. This document was traced out on the basis of statement of PW-1 paper No. 23-Ga where the time and date of construction has been given. Sri M. K. Gupta has submitted that there is no such assertion on the part of the tenant that despite exercise of due diligence the evidence cannot be procured and, therefore, the request for adducing additional evidence in a revision under Section 25 of the Small Causes Court should not be accepted. Sri M. K. Gupta has also pointed out that perusal of the rejoinder affidavit which the learned Counsel for the revisionist wants to bring on record as additional evidence, in fact supports him. On perusal of paragraph 11 of the said rejoinder affidavit, it transpires that in fact it helps the land lady Smt. Sushila Rani where she has categorically stated that she has made substantial additions and alterations on the ground floor and thereafter let out a portion thereof to Sri Mundri Lal, therefore, it is submitted that no good reason has been given for bringing on record the additional evidence.;