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Canara Bank v. Ist A.D.J., & Others - WRIT - A No. 15346 of 2000 [2004] RD-AH 1323 (5 November 2004)


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Court No. 26

Civil Misc. Writ Petition No. 15346 of 2000

Canara Bank                      Vs.                               Ist A.D.J.Bijnor & others


Hon'ble Vikram Nath J.

This petition by the tenant has been filed for quashing the judgment and order dated 21.07.1997 passed by the District Magistrate/ Rent Control and Eviction Officer Bijnor and also the judgment and order dated 3.2.2000 passed by Ist Addl. District Judge, Bijnor in Rent Control Appeal No.3 of 1997 in proceeding u/s 21(8) of U.P.Act No. 13 of 1972 whereby the rent of the premises in dispute was enhanced from Rs.750/- to Rs.3791/- per month.

The petitioner Canara Bank is the tenant in the premises in dispute of which the respondent no.3 is owner and landlord. Application was filed by the landlord u/s 21(8) of the Act for enhancement of rent. Landlord has also filed the valuation report of an approved Valuer. According to said report the value of the land comes to Rs.1,26,247.50 and value of construction was determined at Rs. 3,20,700/-. The total value of the premises under the tenancy of the petitioner was determined at Rs.454950/-. Applying the formula provided u/s 21(8) of the Act the landlord claimed the rent at Rs.3791/- per month. The application was contested by the tenant petitioner.

The Rent Control and Eviction Officer by order dated 21.7.97 allowed the application of the landlord and after considering the material evidence on record came to the conclusion that market value determined by the valuation report of the landlord was correct and fixed the monthly rent at Rs.3791/- per month. Against the said judgment the petitioner bank filed an appeal being Rent Control Appeal No. 3 of 1997, Canara Bank Vs.Shanti Prasad Mittal. In the said appeal an application was filed by the Bank to take additional evidence by way of valuation report as the Bank could not file its valuation report before the Rent Control and Eviction Officer. The said application was rejected by the appellate court vide order dated 28.4.98 against which a petition was filed before this Court being Writ Petition No. 40456 of 1999 Canara Bank Vs. Ist Addl. District Judge. The said writ petition was dismissed vide order dated 21.9.99 with the finding that there was no manifest error apparent on the face of record in the impugned order. This Court further observed as follows:

" In view of the fact that appeal is still pending. Appellate court shall decide the appeal taking into account all the relevant material facts on record in accordance with law at an early date."

The appellate court vide judgment dated 3.2.2000 has dismissed the appeal by detailed judgment after considering the material evidence on record. Against the said judgment the present writ petition has been filed.

I have heard Sri Tarun Verma, learned counsel for the petitioner and Sri Anurag Khanna learned counsel for the respondent.

The sole contention of learned counsel for the petitioner Bank is that the observations made by this Court in its order dated 21.9.99 as quoted above would imply that the additional evidence sought to be filed by the petitioner Bank before the appellate court in the form of valuation report should have been considered by the appellate Court as it was relevant material fact before the Court.. The contention is that the valuation report filed along with application for additional evidence being material on record ought to have been considered by the appellate Court. It is further contended that as the Appellate Court has not considered the Valuation report filed by the petitioner, the order is vitiated and liable to be set aside.

The counsel for the respondent has contended that the relevant material facts as observed by this Court in the order dated 21.9.99 could only mean facts and evidence accepted on record and not any evidence specifically rejected and refused to be accepted. In the present case, the valuer report filed by the Bank having been refused to be accepted by the Appellate Court and writ petition against the same having been dismissed it was contended by the counsel for respondent that it cannot be said that the valuation report filed by the petitioner bank was material fact or evidence on record and that it could be considered.

Having considered the contention of both the sides I am of the view that any evidence specifically rejected or refused by the Court cannot be said to be relevant material on record. Merely by filing any evidence and that too at the appellate stage it cannot be said that it become material evidence for consideration. The Court has to consider only such evidence, which is filed in accordance with law and accepted on record. Order 41 Rule 27 of the CPC clearly bars filing of any evidence at the appellate stage except by leave of the Court under the circumstances given in the said provision. Where the Court specifically refused to  accept any evidence, such evidence  cannot become  relevant for consideration.

In view of the said facts I agree with the contention of respondent that the appellate court rightly refused to look into the valuer's report filed by the petitioner bank.

The counsel for the petitioner bank was asked to place the valuer's report filed by it before the appellate Court but unfortunately the same has not been filed in the present proceedings before this Court. Therefore, this Court also cannot examine to notice the different valuation of the premises in dispute as submitted by two different valuation reports. The Bank having chosen not to file its valuer's report cannot agitate that there has been denial of opportunity.

I have also examined the valuation report submitted by the respondent landlord and also the order of the appellate Court dated 3.2.2000. The value of the land has been correctly taken to be at 50% of the rate fixed by the Collector for the reason that the ground floor was inoccupation for the landlord and the first floor and second floor comprised the tenancy in occupation of the Bank. Further the total area in the tenancy of the Bank was approximately 2900 Sq.Ft. Applying the standard multiplier and after necessary depreciation the value of construction was calculated by the valuer, which has been accepted by the appellate Court. There appears to be no illegality in the order of the appellate Court.

I do not find any infirmity in the order of the appellate Court dated 3.2.2000.

The petition is devoid of merit and is accordingly dismissed. The interim order passed by this Court dated 4.4.2000 is discharged. The respondent no.3 landlord may withdraw the balance amount lying in deposit pursuant to the interim order passed by this Court..




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