Ashok Bhushan - (1.) HEARD Sri M. K. Gupta, counsel for the petitioner and Sri C. K. Parekh appearing for the respondent No. 1. Learned counsel for the petitioner submits that the respondent Nos. 2 and 3 are only proforma respondents and no notices need be issued to them. Learned counsel for the parties have agreed that the writ petition be disposed of finally without inviting counter-affidavit.
(2.) BY this writ petition the petitioner has prayed for quashing the order dated 23.8.2007, passed by the Additional District Judge by which the affidavit filed by the petitioner annexing certain Government orders and other papers have been refused to be accepted. Brief facts necessary for deciding the writ petition are : The proceedings under the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 (hereinafter to be referred as the Act, 1972) were initiated against the petitioner and by an order dated 23.8.2007 the petitioner was directed to be evicted before the property in question. In the appeal filed under Section 9 of the Act the petitioner filed an affidavit alongwith copy of the Government orders, copy of sale deed dated 26.6.2003 and the copy of the receipt of deposit of rent. The said application came before the appellate court who rejected the same. The appellate court while rejecting the affidavit and application has observed that since the appellant did not appear in the lower court despite service of notice, there is no reason for allowing the appellant to file additional affidavit in the appeal. The entire reasons given by the appellate court for rejecting the application are as follows : ".......As he did not avail his right to contest the case by appearing himself in the lower court and filing evidence I do not find any satisfactory reason for allowing him to file additional evidence in appeal and, therefore, his application, in this regard is rejected. Put up on 30.9.2007 for arguments." Learned counsel for the petitioner challenging the order contended that the affidavit and application of the petitioner has been wrongly refused to be accepted. He submits that the mere fact that the petitioner could not appear before the Estate Officer, was not relevant factor for refusing acceptance of the affidavit and additional documents. Learned counsel for the petitioner has placed reliance on the judgment of the Apex Court in Jaipur Development Authority v. Kailashwati Devi (Smt.), (1997) 7 SCC 297 : 1998 (1) AWC 739 (SC).
(3.) SRI C. K. Parekh appearing for the respondent No. 1 refuting the submissions of counsel for the petitioner, contended that the petitioner having not satisfied the conditions for admitting the additional evidence as laid down under Order XLI, Rule 27 of the Civil Procedure Code, no error has been committed by the District Judge in rejecting the application. He further submits that the petitioner did not appear before the Estate Officer hence he has no right to adduce evidence. He submits that the appeal be decided on merits. He submits that it is only at the time of final decision of the appeal, the question of accepting evidence can be looked into. I have considered the submissions of counsel for the parties and perused the record.;