CHAUHAN, J. - (1.) BOTH these petitions have been filed against the common judgment and order of the Court below dated 15. 2. 2002 passed in Civil Appeal No. 32/1994, rejecting the applications of the petitioner under Order 41 Rule 27 and Order 6 Rule 17 of the Code of Civil Procedure, 1908 (for short, "the Code") for taking additional evidence on record and seeking amendment of the pleadings.
(2.) THE suit was filed in 1988 by the non-petitioner for eviction of the petitioner-tenant on the ground of bonafide personal necessity and nuisance under the provisions of Section 13 (1) (h) and Section 13 (1) (b) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, "the Act, 1950" ). THE suit was decreed in 1994. Being aggrieved and dissatisfied, petitioner preferred first appeal, in which he filed an application for amendment as he wanted to urge additional ground that the non- petitioner/plaintiff had other premises vacant and rented it out, but that application was rejected. Against the same, petitioner filed a Revision Petition No. 76/1997, which was rejected by this Court, vide order dated 12. 10. 2001. While disposing of the said revision, this Court directed the learned appellate Court to dispose of the appeal expeditiously. Petitioner filed the aforesaid applications when the matter came up for final hearing on the ground that the non- petitioner/plaintiff had raised the issue of applicability of Section 13 (1) (i) of the Act, 1950, also i. e. that petitioner had acquired a residential house in the city and hence those applications were necessary. Both these applications were necessary. Both these application have been rejected on the ground that this was an admitted fact before the trial Court that petitioner-defendant had a house in the city and both the applications were not necessary as there had been an issue before the trial Court regarding comparative hardship of the landlord and the tenant and everything could be argued on that issue. However, the learned Appellate Court made certain observations, i. e. whether the ground of Section 13 (1) (i) of the Act, 1950 is available or not, would be seen at a later stage. Hence these revisions. So far as the application for adducing additional evidence under Order 41 Rule 27 is concerned, petitioner found it necessary to meet the argument if the provisions of Section 13 (1) (1) of the Act, 1950 are found to be attracted in the case. Though there are no pleadings by the parties in respect of applicability of that provision, nor any evidence has been adduced in this respect. Petitioner wanted to bring the documents on record, particularly the documents relating to sanction of water and electric supply and allotment letter etc. The law of taking the additional evidence on record at an appellate stage has been reiterated by the Hon'ble Supreme Court from time to time. The provisions of O. 41 R. 27 of the Code have been considered elaborately in Arjan Singh vs. Kartar Singh & Ors. (1), wherein the Hon'ble Apex Court held that the said provisions are applicable when some inherent lacuna of defect becomes apparent while examining the case and are not applicable where a discovery is made out-side the Court of fresh evidence and application is made to import it. The true test to allow the application is as to whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. While deciding the said case, the Hon'ble Supreme Court placed reliance upon two judgments of the Privy Council in Kessowji vs. G. P. P. Railway (2), and Persottam vs. Lal Mohan A Five Judges Bench of the Hon'ble Supreme Court, in K. Venkataramiah vs. A. Seetarama Reddy (4), considering the said provisions, held as under :- ". . . . . . The Appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for `any other substantial cause. ' There may well be cases where even though the Court finds that it is able to pronounce judgment on the set of the record as it is and so it cannot strictly say that it requires additional evidence `to enable it to pronounce judgment', it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. Thus, it made it clear that the object of the said provision is to ask a party to adduce additional evidence. " The Court further made it clear that though the provisions provide for recording the reasons for accepting or rejecting the application under the provisions but it is not mandatory.
(3.) IN Soonda Ram & Anr. vs. Rameshwar Lal & Anr. (5), the Hon'ble Supreme Court considered the case under the said provisions of the Rajasthan Act, 1950 and held that if the issue can be decided on the basis of the evidence on record and there was no defect in the pleadings of such a nature that would enable the Court to obliterate and ignore the evidence adduced on the points involved, the application under Order 41 Rule 27 should not be allowed. In Natha Singh vs. Financial Commissioner Taxation, Punjab (6), the Hon'ble Apex Court held that unless additional evidence is necessary to pronounce the judgment, it should not be permitted to be adduced as "the discretion given to the Appellate Court to receive and admit additional evidence, is not an arbitrary one but it is judicial one circumsribed by the limitation specified in Order 41 Rule 27 of the Code. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence, so brought on record, has to be ignored. Reiterating the same view in the Land Acquisition Officer vs. H. Narayanaiah etc. (7), the Apex Court further observed that for allowing the application, the Appellate Court must record reasons to show that it had considered the requirement of O. 41 R. 27 of the Code so that it may be examined as how the Appellate Court found the admission of such evidence to be necessary for some substantial reason and if it finds it necessary to admit it, an opportunity should be given to the other side to rebut any inference arising from its existence by leading other evidence. ;