Quashed

Dr. Sunil Malhotra v. Surendra Singh and 2 Others

Allahabad HC10 May 2018A227/3283/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the High Court quashed the revisional court's order rejecting an application to admit additional evidence regarding rent deposits. The court remanded the matter for reconsideration in light of Section 151 and Order VIII Rule 1-A(3) CPC.

What did the court decide?

Order passed by revisional court quashed; matter remanded to revisional court for fresh consideration within one month.

Dr. Sunil Malhotra Vs Surendra Singh and… — Contract and Commercial Disputes | Allahabad HC (2018)

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Court No. - 26

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Case :- MATTERS UNDER ARTICLE 227 No. - 3283 of 2018

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Petitioner :- Dr. Sunil Malhotra Respondent :- Surendra Singh And 2 Others Counsel for Petitioner :- Rohan Gupta

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Hon'ble Mrs. Sangeeta Chandra,J.

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This writ petition has been filed praying for quashing the order dated 14.12.2017 passed by Judge Small Causes Court in S.C.C. Suit No. 206 of 2012 and for quashing of the order dated 13.02.2018 passed by District Judge Kanpur Nagar in S.C.C. Revision No. 23 of 2018.

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Learned counsel for the petitioner submitted that the petitioner had filed an application for taking on record additional evidence/documentary evidence with regard to filing of deposit of rent before the Civil Judge (Junior Division), Kanpur Nagar in Misc. Case No. 527/70/2011. The S.C.C. Suit filed for arrears of rent and for eviction of landlord can be allowed only if it is established by the landlord that the tenant has been in arrears of rent. Therefore, the documentary evidence proposed to be filed before the learned trial court regarding rent receipts of deposit of rent in the Court of Civil Judge (Junior Division), Kanpur Nagar was necessary. The learned trial court rejected the application on the ground that the application for taking on record additional evidence had been filed merely to prolong the pending proceedings. The tenant had been given sufficient time to adduce evidence and now at the last stage, when the arguments were being heard, such an application for taking on record additional evidence cannot be allowed.

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Aggrieved by the order passed by the trial court dated 14.02.2017, the petitioner filed S.C.C. Revision No. 23 of 2018. Learned District Judge, Kanpur Nagar while rejecting the revision has observed that Rule 2, Order XIII has been omitted by way of amendment. In the Civil Procedure Code there is no other provision except for Section 151 wherein such application could have been considered or allowed. He has also observed that the suit is pending for the last six years and it was fixed for arguments when the defendant moved application No. 77C for filing documentary evidence, which was also allowed on 09.09.2015. The defendant thereafter moved an amendment application dated 17.10.2015, which was rejected on merits on 28.05.2016. Another application for taking on record the additional evidence has been moved only on 28.03.2017, which was rejected against which a revision was filed. The revision

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was also allowed with a cost of Rs. 10,000/- with the consent of the parties. Despite the said application for taking on record the additional evidence being filed earlier, no other evidence was filed, and later on the application No. 134-C was moved, which has been rejected by the learned trial court by its order dated 14.04.2017. The revisional court find no infirmity factual or legal in the order passed by the trial court to show interference in revision.

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Learned counsel for the petitioner-tenant has placed reliance upon a judgement rendered by a Hon'ble Judge of Rajasthan High Court in Keshar Devi Vs. Vajeera; 2014 (2) WLN 257 (Raj.) wherein the Court had observed in paragraph no. 11 regarding the necessity of considering the hardship of the litigant due to lapse or negligence on the part of the lawyer. Order 9, Rule XIII application in the aforesaid case had been rejected by the learned court below but the High Court came to conclusion that the said application ought to be allowed. The matter was remanded for reconsideration afresh on merits by the Court.

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Learned counsel for the petitioner has also placed reliance upon a judgement of the Hon'ble Supreme Court in K.K. Velusamy Vs. N. Palanisamy; (2011) 11 SCC 275 wherein the Hon'ble Supreme Court has observed that the power under Section 151 can be exercised to deal with any particular procedural aspect, which is not provided especially in the code of Civil Procedure, if the ends of justice so warranted and to prevent abuse of process of Court. The Appellate Court in appropriate case can exercise it's discretion to permit re-opening of evidence and also for recall of a witness for further examination/crossexamination after evidence has been led by the parties is concluded and arguments have been commenced, or even when the arguments have been concluded and the case has been reserved for judgment.

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No doubt after the deletion of Rule 2 of Order XIII by the 1999 Amendment, the provision to take additional evidence on record may have been deleted from Order XIII but under Order VIII, Rule 1-A, sub Rule (3), which has been added by way of amendment in the year 2002, a provision has been made that a document which ought to be produced in the Court by the defendant but was no so produced, can be received as evidence on his behalf at the time of hearing of the suit, with the leave of the court.

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In this case the admitted fact is that the petitioner-tenant has been depositing rent in Misc. Case No. 527/70/2011 pending before the Civil Judge (J.D.), Kanpur Nagar and in the

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application made, namely application no. 134-C, the tenant has requested for summoning of the record of Misc. Case No. 527/70/2011 by the learned trial court to ascertain whether the rent was being deposited by the tenant, in addition to a prayer being made that the rent receipts so deposited in the Court be allowed to be produced as an additional evidence. In such a case, the learned trial court or the learned revisional court could have considered the request and granted leave under Sub-Rule 3 of Rule 1-A of Order VIII. They could also have imposed cost to appropriately compensate the landlord for delay.

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The order passed by the revisional court is set aside.

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The matter is remanded to the revisional court to consider afresh the said revision in the light of observations made herein above and pass an appropriate order therein within a period of one month from the date of production of a certified copy of this order before him.

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The writ petition is disposed off.

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Order Date :- 10.5.2018 S.K.

Dr. Sunil Malhotra v. Surendra Singh and 2 Others

Case brief

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Dr. Sunil Malhotra v. Surendra Singh and 2 Others

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