Shishir Kumar, J. - (1.) This writ petition has been filed for quashing the order dated 14.1.2009 passed by Addl. District Judge, Budaun in Rent Appeal No. 12 of 2008.
(2.) It appears that against the petitioner who is a tenant, a release application filed by the respondent was allowed by the Prescribed Authority vide its order dated 2.1.2008. The petitioner filed an appeal under Section 22 of Act No. XIII of 1972. During pendency of the appeal, the petitioner filed one application for additional evidence which was numbered as 28 Ga and one application as 53 Ga for adducing additional evidence as well as an application for issuance of commission in order to ascertain the dimensions of the rooms which exists on the upper storey of the shop in which the petitioner is a tenant and also for inspection of the shop which belongs to respondents No. 1 and 2. These applications filed by the petitioner after due consideration, the appellate Court has passed an order that all the applications will be considered at the time of hearing in view of the judgment of the Apex Court as well as this Court. This order was passed on 14.1.2009. The petitioner aggrieved by the aforesaid order filed this writ petition and obtained an order staying further proceeding.
(3.) Sri Siddharth Verma, learned counsel appearing for the petitioner submitted that during the pendency of the appeal, some additional facts came to the knowledge, therefore, these applications have been filed. In view of Section 38 of Act No. XIII of 1972 it will have over-riding effect upon the provisions of Transfer of Property Act and Civil Procedure Code. In view of the provisions of Section 38, no provision of Civil Procedure Code was applicable unless and until it was applied by Act No. XIII of 1972. Order XLI Rule 27, C.P.C. cannot be made applicable in such proceeding. Section 38 as well as Order XLI Rule 27 Code of Civil Procedure are being reproduced below : "38. Act to override T.P. Act and Civil Procedure Code.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Transfer of property Act, 1882(Act No. IV of 882) or in the Code of Civil Procedure, 1908." "Order 41 Rule 27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, 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 exercising of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.;