- (1.) S. R. Singh, J. Heard the learned counsel for the petitioner and also the coun sel appearing for the respondents.
(2.) IN appeal preferred against the order of eviction passed under Section 21 (1) (a) of the U. P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972, the petitioner moved an application for adduc ing additional evidence. The appellate court rejected the application by means of a laconic order dated 30-11-1995 impugned in this petition which reads as below. "heard. The evidence sought to be adduced at the appellate stage is highly belated. Rejected. " Having heard the learned counsel for the parties, I am pursuaded to the view that the impugned order cannot be sus tained 'for it assigns no valid reasons for refusal to admit evidence at the appellate stage. Section 34 of the U. P. Urban Building (Regulation of Letting, Rent & Eviction) Act, 1972, provides that the District Magistrate, the Prescribed Authority or any (appellate or revising authority) shall for the purposes of holding any enquiry or hear ing (any appeal or revision) under this Act, have the same powers as are vested in the civil court under the Code of Civil Proce dure, 1908 when trying a suit, inter alia in respect of receiving evidence on affidavit. The petitioner, in fact, wanted to adduce additional evidence in the shape of affidavit bringing on record certain additional facts which could not be brought on record ear lier. It brooks no dispute that in respect of admission of additional evidence at the ap pellate stage, the appellate court enjoys the same powers as are vested in the Civil Courts under Order 41, Rule 27 of the Code of Civil Procedure, which provides that the parties shall not be entitled to produce addi tional evidence, whether oral or documen tary in the appellate Court, but if (a) the court from whose decree, the appeal is preferred, has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence could not be produced by him at the time when the decree appealed against was passed, or (b) the appellate court require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. Section 10 (2) of the U. P. Act 13 of 1972 also provides that the appellate authority may take any additional evidence. Provisions of Section 10, mutatis mutandis, apply in relation to an appeal preferred under Section 22 of the Act. Sub-rule (2) of Rule 10 provides that whenever additional evidence is allowed to be produced by an appellate court, the court shall record reasons for its admission. This cannot be interpreted to signify that reasons are not required to be given for refusal to admit additional evidence at appellate stage. A conjoint reading of Section 10 (2), Section 22, Section 34 of the U. P. Act 13 of 1972 and Order 41, Rule 27 of the Code of Civil Procedure would be speak that the appellate court was enjoined with a duty to record reasons while allowing or rejecting an application, for adducing additional evidence in the shape of affidavit. The mere fact that the additional evidence sought to be adduced was belated, was by itself no ground to merit rejection of the application. It would depend upon the nature of the facts set out in the affidavit sought to be brought on record and whether such facts could have been reasonable brought on record at ear lier stages of the case and whether the party adducing additional evidence was taxed with the negligence of non-exercise of due diligence. Principles enunciated in clause (aa) of Order 41, Rule 27 (1) of the Code of Civil Procedure signify that if the party seek ing to adduce additional evidence, estab lishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exer cise of due diligence, be produced by him at the time when the order appealed against, was passed, the additional evidence may be admitted even at a late stage. Such admis sion may be permissible even in a case where the appellate court requires any document to be produced or any evidence to be ex amined to enable it to pronounce judgment or for any other substantial cause. All these aspects or the matter ought to have been adverted to before rejecting the application filed on behalf of the petitioner for adducing additional evidence. In my opinion, the im pugned order wears appearance of manifest error of law and is, therefore not liable to be sustained.
(3.) ACCORDINGLY, the petition succeeds and is allowed. The impugned order is quashed. The appellate authority is directed to reconsider the application moved on be half of the petitioner for adducing addition al evidence and dispose it of in accordance with law as expeditiously as possible. Petition allowed. .;