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GAUHAR ALI versus DISTRICT JUDGE

High Court of Judicature at Allahabad

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Gauhar Ali v. District Judge - WRIT - A No. 9805 of 2002 [2002] RD-AH 24 (20 August 2002)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 45

Civil Misc. Writ Petition no. 9805 of 1989

Gauhar Ali and others          Vs.  The District Judge, Ballia and others.

Hon. S.P. Mehrotra, J.

This writ petition under Article 226/227 of the Constitution of India has been filed , interalia, seeking quashing of the order dated 3.4.1989 passed by the  learned District Judge, Ballia( Respondent no. 1 )( Annexure no. 5 to the writ petition ).

The dispute relates to a house situated in Mohall- Bishunipur, District Ballia. The said house has hereinafter been referred to as " the disputed house".

It appears that the respondent no. 3 filed a release application under section 21(1)(a) of the U.P. Act No. XIII of 1972 against Gauhar Ali and Smt. Zaibunisa for release of the disputed house. The said release application was numbered as paper no. 4C2 .

It was ,interalia , alleged by the respondent no. 3 in the said release application that his need for the disputed  house was bonafide and genuine , and that no hardship would be caused to the said Gauhar Ali and Smt. Zaibunisa in case of  their ejectment  from the disputed house,  while the respondent no. 3 would suffer much greater hardship in case  the said release application was rejected. The said release application was registered as

Release Case no. 176 of 1984.

It further appears that  the objection ( paper no. 34C2) was filed on behalf of the said Gauhar Ali and Smt. Zaibunisa in reply to the said release application ( paper no. 4C2). It was , interalia , alleged in the said objection that the respondent no. 3 was not  the landlord of the disputed house, therefore, he had no concern with the disputed house, and the said Gauhar Ali and Smt. Zaibunisa themselves were  the  owners and land lords of the disputed house. It was , interalia, further alleged in the said objection that need of the respondent no. 3 was not bonafide and genuine , and the release application was liable to be dismissed.

It appears from the order sheet  of the said release  case ( Annexure no. 3 to the writ petition ) that on 18.4.1987  an application no. 66C2 was filed on behalf of the said Gauhar Ali and Smt. Zaibunisa,  and various documentary evidence were also filed on behalf of the said Gauhar Ali and Smt. Zaibunisa on the said date. A copy of the   said application no. 66C2 has been filed as annexure no. 1 to the writ petition.

It was , interalia, alleged in the said application no.66C2 that  an exparte  decree dated 26.5.1984 had been fraudulently obtained against the said Gauhar Ali and Smt. Zaibunisa in Civil Suit no. 380 of 1983 Ali Hasan Vs. Gauhar Ali and others in the court of Munsif (East) Ballia, and on coming to know about the said ex-parte decree dated 26.5.1984,  the said Gauhar Ali and Smt. Zaibunisa filed an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the said ex-parte decree which was pending ; and that  the main issue involved in the said civil suit was as to  whether the respondent no. 3 was the owner of the disputed house or not; and that there was  dispute regarding the ownership between the respondent no. 3 and the said Gauhar Ali and Smt. Zaibunisha , and the same could not  be decided  by the Prescribed Authority in the said release case.

It further appears from the order sheet ( annexure no. 3 to the writ Petition ) that on 14.8.1987, objection ( paper no. 80C2 ) was filed on behalf of the respondent no.3 in reply to the said application no. 66C2 .

The order sheet dated 14.8.1987 further shows that 18.8.1987 was fixed , interalia, for disposal of 4C2  ( release application ) ,36C2 ( Objection to the said release application), 80C2 ( objection to the application no. 66C2) , 35C2 and 66C2 ( application filed on behalf of the  said Gauhar Ali and Smt. Zaibunisa).  On  18.8.1987, the said 4C2,36C2,80C2 and 66C2 were taken up and heard, and  29.8.1987 was fixed for order.  

On 29.8.1987, the learned Prescribed Authority by his judgment and order dated 29.8.1987, interalia, dismissed  the said application no. 66C2 filed by the said Gauhar Ali and Smt. Zaibunisa and allowed the said release application ( paper no. 4C2 ) filed by the respondent no. 3. A copy of the said judgment and order dated 29.8.1987 passed by the Prescribed Authority /Civil Judge, Ballia has been filed as annexure no. 4 to the writ petition. A perusal of the said judgment and order dated 29.8.1987 passed by the learned Prescribed Authority shows that various documents were filed on behalf of the said Gauhar Ali and Smt. Zaiunisa in support of their case.

Against the said judgment and order dated 29.8.1987, the said Gauhar Ali and Smt. Zaibunisa filed an appeal under section 22 of the U.P. Act No. XIII of 1972 which was registered as Rent Control Appeal no.8 of 1987.

It  further appears that before the learned District Judge, Ballia (Appellate Authority) ,respondent no.1, grievances were raised that although  documents were filed before the learned Prescribed Authority ,but affidavits of witnesses could not be filed under certain circumstances.

Considering the circumstances including the circumstance that the learned Prescribed Authority by his judgment and order dated 29.8.1987 dismissed the said application no.66C2 filed on behalf of the said Gauhar Ali and Smt. Zaibunisa,  and at the same time allowed the release application no. 4C2 filed by the respondent no.3,  the learned District Judge, Ballia ( Appellate Authority)( respondent no.1) passed an order dated April, 3, 1989 (Annexure no. 5 to the writ petition ) directing the parties to file affidavits and other evidence in the said Rent Control Appeal no. 8 of 1987 before the  Appellate Authority itself.

Thereafter, the said Gauhar Ali and Smt. Zaibunisa as petitioner nos. 1 and 2 filed this writ petition before this Court challenging the said order dated Appril, 3, 1989 passed by the learned District Judge ( Appellate Authority ) ( respondent no.1) .

During the pendency of this writ petition, the said Guahar Ali  (petitioner no.1) died, and his heirs and legal representatives have been brought on record pursuant to the order dated 4.5.2001 passed  by this Court.

I have heard Sri Abhishek Kumar, learned counsel for the petitioners and Sri Ikram Ahmad, learned counsel for the respondent no.3.

Learned counsel for the petitioners submits that as the application no. 66C2  had been filed on behalf of the petitioners ( the said Gauhar Ali and Smt. Zaibunisha ) questioning the maintainability of the said release application in view of the involvement of the question of title, the petitioners were under bonafide belief that the learned Prescribed Authority would first decide the said application no. 66C2 and then would proceed to decide the said  release application no. 4C2 on merits. However, the learned Prescribed Authority by the judgment and order dated 29.8.1987 not only dismissed the said application no.66C2 but also allowed the said release application no. 4C2 filed by the respondent no.3. As such, affidavits of witnesses could not be filed on behalf of the petitioners. Learned counsel for the petitioners further submits that once the learned District Judge, Ballia,  (Appellate Authority ) ,respondent no. 1 was satisfied that the circumstances were such that the parties  be directed to file affidavits and other evidence in support of their respective cases, the learned District Judge, Ballia ought to have remanded the  matter to the Prescribed Authority directing the parties to file affidavits and other evidence before the Prescribed Authorit. TheLearned District Judge, Ballia, acted illegally in directing the parties to file affidavits and other evidence in the aforesaid Rent Control Appeal no. 8 of 1987 itself before the Appellate Authority  (respondent no.1). Learned counsel for the petitioners further submits that had the matter been remanded to the Prescribed Authority directing the parties to file affidavits and other evidence before the Prescribed Authority, the petitioners would have got an opportunity before the Prescribed Authority , and then another opportunity before the Appellate Authority for assessment of affidavits and other evidence As the learned District Judge, Ballia  (Appellate Authority) directed the parties to file affidavits and other evidence before the Appellate Authority in the said Rent Control Appeal no. 8 of 1987 itself,  the petitioners were deprived of an opportunity of the assessment of the affidavits and other evidence before the Prescribed Authority.

Learned counsel for the petitioners submits that this was not a case where the Appellate Authority could have taken additional evidence under section 10(2) of the U.P. Act No.XIII of 1972. He placed reliance on a decision of this Court in Haji Abdul Samad Vs. Jalaluddin 1976(2) A.L.R. 167. It is submitted by the learned counsel for the petitioners that  even though the provisions of Order XLI Rule 27 of the Code of Civil Procedure are not applicable but underlying  principles are applicable. Learned counsel for the petitioners submits that none of the conditions laid down under Order XL1 Rule 27 of the Code of Civil Procedure was satisfied in the present case. As such, it was not open to the learned District Judge,( Appellate Authority), respondent no.1 to pass  the said order dated 3.4.1989 directing the parties to file affidavits and other evidence in the said Rent Control Appeal no. 8 of 1987 itself. It is further submitted by the learned counsel for the petitioners that the principles under Order XL1 Rule 23A of the Code of Civil Procedure were applicable to the present case, and the learned District Judge, Ballia ( Appellate Authority) ought to have remanded the matter to the Prescribed Authority .

Sri Ikram Ahmad, learned counsel for the respondent no. 3 submits that this writ petition has been filed merely to delay the proceedings in the appeal before the Appellate Authority. It is submitted by the learned counsel for the respondent no.3 that the learned District Judge, Ballia (Appellate Authority) directed the petitioners to lead evidence , thus, there was no occasion for the petitioners to have  any grievance ,  and this writ petition filed by the petitioners is liable to be dismissed. Learned counsel for the respondent no.3 further submits  that the learned District Judge, Ballia, respondent no.1 (Appellate Authority) could take additional evidence under the provisions of the  U.P. Act no. XIII of 1972 .While taking additional evidence , Appellate Authority would be governed by the principles   under-lying the provisions of  Order XL1 Rule 27 of the Code of Civil Procedure. Additional evidence could not be permitted to fill up the lacuna in the case.            Learned counsel for the respondent no.3 places reliance on a decision of this Court in Jalil Ahmad Vs. IVth Addl. District Judge, Farrukhabad and others  1980(6) A.L.R. 294. Learned counsel for the respondent no.3 further submits that the question of title could be decided by the Prescribed Authority while deciding an application under section 21 of the U.P. Act No. XIII of 1972. Reliance is placed by the learned counsel on a Division Bench decision of this Court in Ram Nath Mishra Vs. Prescribed Authority and others  1984(2) ARC , 227.

Having considered the submissions made by the learned counsel for the parties , I am of the opinion that this writ petition filed by  the petitioners lacks merits and is liable to be dismissed.

Let us first take up the submission raised by the learned counsel for the petitioners that the petitioners ( the said Gauhar Ali and Smt. Zaibunish) were under bonafide belief that only the application no. 66C2 filed  on their behalf  would be disposed of first by the learned Prescribed Authority,  and , thereafter,  the learned Prescribed Authority would proceed to consider and decide the release application No. 4C2 filed by the respondent no. 3.The said submission raised by the learned counsel for the petitioners does not appear to be correct. The order sheet dated 14.8.1987 , interalia, specifically mentioned that 18.8.1987 was being fixed for disposal of . 4C2 ( release application ), 36C2( Objection to the release application , 80C2( objection to the application no.66C2), and 66C2 ( application filed on behalf of the said Gauhar Ali and Smt. Zaibunisha ). The order dated 18.8.1987 shows that  4C2, 36C2, 80C2 and 66C2 were taken up and heard on the said day, and 29.8.1987  was fixed for orders. There was no occasion for the petitioners to be under any impression that the said application no. 66C2 would be first disposed of, and only thereafter, the said release application no. 4C2 would be considered and disposed of by the learned Prescribed Authority. Evidently, the learned Prescribed Authority was of the view that instead of deciding the points raised in the said application no. 66C2 as preliminary point, entire case including the said application no. 66C2 should be decided simultaneously , and the learned Prescribed Authority proceeded to act accordingly.

It is noteworthy that on 18.4.1987 various documents were filed on behalf of the petitioners . The learned Prescribed Authority in its judgment and order dated 29.8.1987 considered  the documents filed on behalf of the petitioners. Therefore, the petitioners could have also filed affidavits , if  they so desired, before the Prescribed Authority itself. In any case, the Appellate Authority ( learned District Judge), Ballia, ( respondent no.1) considered the grievances of the petitioners after noticing the circumstances of the case and directed the parties to file affidavits and other evidence before the Appellate Authority   itself in the said Rent Control Appeal No. 8 of 1987. Thus, the grievance of the petitioner , if any, was taken care of and redressed by the Appellate Authority( learned District Judge, Ballia) (respondent no. 1) by passing the order dated 3.4.1989 directing the parties to file affidavits and evidence in the appeal itself . Section 10 of the U.P. Act no.XIII of 1972 provides as follows :-

10. Appeal against order under sections 8,9 and 9A  

"(1) Any person aggrieved by an order of the District Magistrate under Section 8 or Section 9 or Section 9A may , within thirty days from the date of the order, prefer an appeal against it to the District Judge, and the District Judge may either dispose it of  himself or assign it for disposal to an Additional District Judge under his administrative control , and may recall it from any such officer, or transfer it to any other such officer.

    (2)  The appellate authority may confirm , vary or rescind the order, or remand the case to the District Magistrate for rehearing, and may also take any additional evidence, and pending its decision, stay the operation of the order under appeal on such terms, if any, as it thinks fit.

   (3)  No further appeal or revision shall lie against any order passed by the appellate authority under this section, and its order shall be final "

Section 22 of the U.P. Act No. XIII of 1972 provides for appeal against an order under Section 21 or Section 24 of the said Act . The said section 22, interalia, provides that the provisions of the aforesaid section 10  shall mutalis mutandis apply in relation to an appeal filed under  the said section 22.

Section 34 (1) of the U.P. Act No. XIII of 1972 provides as follows :-

" 34. Powers of various authorities and procedure to be followed by them-

(1) The District Magistrate , the prescribed authority or any[ appellate or revising authority] shall for the purpose of holding any inquiry or hearing [ any appeal or revision] under this Act have the same powers as are vested in the Civil Court under the Code of Civil Procedure, 1908( Act no.V of 1908) , when trying a suit in respect of the following matters namely-

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) receiving evidence on affidavits;

(c) inspecting a building or its locality , or issuing commission for the examination of witnesses or documents or local investigation;

(d) requiring the discovery and production of documents;

(e) awarding , subject to any rules made in that behalf, costs or special costs to any party or requiring security for costs from any party;

(f) recording a lawful agreement, compromise or satisfaction  and making an order in accordance therewith;

(g) any other matter which may be prescribed".

A  combined reading of the provisions of the aforesaid Section 10(2), 22 and 34(1) of  the U.P. Act No. XIII of 1972 shows that the appellate authority has power to take additional evidence in an appeal filed under section 22 of the U.P. Act No. XIII of 1972.

It is also well established that even though the provisions of Order XLI Rule 27 of the Code of Civil Procedure are not applicable to the proceedings under the provisions of the U.P. Act No. XIII of 1972, the underlying  principles  under Order XLI Rule 27 of the Code of Civil Procedure are applicable to these proceedings.

In Haji Abdul Samad ( Supra ) , Learned Single Judge of this Court has laid down as follows :-

" The second submission made by the counsel for the petitioner was that the learned District Judge committed an error of jurisdiction in not admitting additional evidence filed before him. He submitted that section 10(2) read with section 18 of the New  Act  conferred unfettered and un-restricted powers to admit additional evidence in appeal by appellate authority created under this statute and as the learned District Judge did not exercise its power , the order rendered by him was illegal. I have given my anxious consideration  to the above argument but I am unable to uphold the same. It is no doubt true that Section 10(2) of the Act does not place any restriction on the power of the appellate authority but such a restriction is implied inasmuch as the appellate court could not be treated like the original court. A distinction has got to be maintained between the powers of an original court and that of an appellate court. An appellate court cannot function properly in case it is held that it has got the same powers to admit evidence as the original court has. The power given to an appellate court, therefore, will have to be exercised with circumspection . Moreover, the word ''may' used in Section 10 is also indicative of the fact that the power given to appellate court is discretionary. Hence the High Court will not be justified in interfering with the refusal to admit additional evidence. On being asked the learned counsel could only point out that those letters which were filed in appeal could not be collected by the petitioner for being available at the initial stage of the case. This to my mind is hardly a circumstance which could justify the exercise of jurisdiction in favour of the petitioner in appeal. I am, therefore, unable to find that the learned District Judge, Kanpur committed an error of jurisdiction or committed any mistake apparent on the face of the record".

In Jalil Ahmad ( Supra ), it was laid down as follows ( Page nos. 296 to 297)  :-

" ................. There is no doubt that under section 10(2) of the Act, the appellate authority has power to admit evidence. The Act or the rules do not lay down any condition nor provide any guidelines as to the circumstances in which additional evidence may be admitted. Broadly , therefore, the principles underlying an Order 41 , Rule 27 C.P.C. which governs the admission of additional evidence in appeal under the Civil Procedure Code may be applied. Now it is settled that the additional evidence under Order 41, Rule, 27 C.P.C. will not be admitted to fill up the lacuna in proof of the party who has been unsuccessful before the lower authority. Unless of course, the matter falls with- in Order 41 Rule, 27 (b) and the Court requires the additional evidence for pronouncing judgment or for any other substantial cause. Clearly where insufficient evidence has been led about certain ingredients necessary for success of the particular ground and no reason is advanced for such omission, admission of additional evidence in order to supplement the evidence led is not permissible unless the Court finds such evidence necessary in order to allow it to decide the case justly  of that there can be no question in the present case because the primary claim was for the bonafide requirement under section 21(1 ) (a) for decision of which the whole evidence was already on record. I would, therefore, hold that the finding of the appellate authority that the application should be allowed under  Section 21(1) (b) also deserves to be quashed".

This decision , thus, shows that the appellate authority while dealing with the appeal filed under section 22 of the U.P. Act No. XIII of 1972 cannot take additional evidence as a matter of course. Additional evidence can be taken keeping in view the principles underlying  Order XLI Rule 27 of the Code of Civil Procedure.

The submission of the learned counsel for the petitioners  is that as the conditions mentioned under Order XLI Rule 27 of the Code of Civil Procedure were not fulfilled in the present case, it was not open to the appellate authority to take additional evidence. If this submission of the learned counsel for the petitioner were to be accepted , it would mean that the learned Appellate Authority could not have permitted the parties including the petitioners to file affidavits and evidence in the appeal before the Appellate Authority .

Moreover, there was no occasion for the Appellate Authority to send back the case to the Prescribed Authority for giving opportunity to the parties to file affidavits  and evidence. The learned Prescribed Authority had already decided the said  release case by the judgment and order dated 29.8.1987 after considering the evidence brought on record by the parties including the petitioners. It is not disputed by the learned counsel for the petitioners that this was not a case where the  learned Prescribed Authority refused to accept the evidence led by the petitioners. As noted above, the order sheet dated 14.8.1987 specifically mentioned that the said  release application no. 4C2 was also to be disposed of  along with application no.66C2 . As such, there was no occasion  for the petitioners to be under any mis-impression as contended on behalf of the petitioners. On 18.8.1987, the said release application 4C2 and the said application no. 66C2 as well as the respective objections ( 36C2 and 80C2)  to the said applications were taken up and heard, and 29.8.1987 was fixed for order. By the said judgment and order dated 29.8.1987, the said release application 4C2 and the said application 66C2 were decided .

Thus , if the submission of the learned counsel for the petitioner were to be accepted , it would mean that the grievance of the petitioner that affidavits of witnesses could not be filed , would remain without any redress. In order to redress the grievance of the petitioner, if any, the appellate authority could only direct the parties to lead additional evidence in the appeal itself  accordingly, the learned appellate authority in the present case directed the parties to file affidavits and other evidence by the passing the impugned order dated  3.4.1989. As the learned Prescribed Authority never denied the  petitioners an opportunity to file affidavits and evidence, and as the documentary evidence were in fact filed on behalf of the petitioners before the Prescribed Authority, there was no occasion to remand the case to the prescribed authority for taking evidence of the parties again. The appellate authority could only direct the parties to lead  additional evidence in the appeal itself, and this was done by the appellate authority by passing the impugned order.

       It is further noteworthy that when  the appellate authority will hear the appeal filed by the petitioners on merits, it may confirm , vary or rescind the order passed by the Prescribed Authority or remand the case to the Prescribed Authority for rehearing in view of the provisions of section 10(2) read with section 22 of the U.P. Act No. XIII of 1972.

In the circumstances, the petitioners cannot  have any grievance  against the impugned order dated 3.4.1989 . The impugned order dated 3.4.1989 has directed the parties to file affidavits and evidence. The affidavits and evidence ,if any,  filed by the parties would be considered before the appellate authority along with the evidence already brought on record  before the Prescribed Authority, and  then the appellate authority would pass suitable orders as it deems fit and proper in the circumstances of the case in accordance with law.

Order XLI Rule  23-A of the Code of the Civil Procedure lays down as follows :-

" Remand in other cases- Where the Court from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point, and the decree is reversed in appeal and a re-trial is considered necessary , the Appellate Court shall have the same power as it has under rule 23".

         This provision as such has no application to the proceedings under the U.P. Act No. XIII of 1972. Even if  the principles underlying this provision were to be applied in the proceedings under the U.P. Act No. XIII of 1972, the same would apply when the Appellate Authority decides the appeal on merits, and not at the stage of consideration of the application for additional evidence.

As regards the submission made by the learned counsel for the respondent no. 3 that the Prescribed Authority could decide the question of title while deciding an application under Section 21 of the U.P. Act No. XIII of 1972, I am not expressing any opinion as the same pertains to the merits of the case and will be considered and decided by the Appellate Authority.

      In view of the aforesaid discussion, it follows that the  writ petition filed by the petitioners is misconceived and lacks merits . The writ petition is accordingly dismissed. However, it is made clear that the appellate authority would decide the appeal uninfluenced by any observations made in this judgment on merits of the release case.

As the matter is an old one,, the appellate authority would endeavor to decide the appeal expeditiously, preferably within a period of six months from the date of filing of a certified copy of this order before him.

However, in the facts and circumstances of the case, there will be no order as to costs.

Dt. 20.8.2002

Aks.  


Copyright

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