Allowed

Shaukin and 15 Others v. Manoj Kumar and 4 Others

Allahabad HC2 May 2018WRIA/11058/2018

Case brief

AI extract

What is this about?

This single-judge High Court bench allowed a writ petition quashing an appellate court order that rejected tenant applications for rejoinder evidence and commissioner inspection. The court held that once evidence on affidavit is permitted, complete justice requires admitting rebuttal evidence or issuing a commission to verify facts about the landlord's alternative accommodation, remanding the matt

What did the court decide?

Writ petition allowed; impugned order quashed; matter remanded to Appellate Court to decide afresh applications for rejoinder evidence and commission without further objections.

Shaukin and 15 Others Vs Manoj Kumar and 4 Others — Landlord and Tenant | Allahabad HC (2018)

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Court No. - 26

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Case :- WRIT - A No. - 11058 of 2018

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Petitioner :- Shaukin And 15 Others Respondent :- Manoj Kumar And 4 Others Counsel for Petitioner :- Krishna Mohan Garg Counsel for Respondent :- Prasoon Tomar

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Hon'ble Mrs. Sangeeta Chandra,J.

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(ORAL)

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This writ petition has been filed praying for a writ in the nature of certiorari for quashing the order dated 04.04.2018 passed by respondent No. 2, learned Additional District Judge, Court No. 7, Bijnor, by which the application of the tenantspetitioners, namely, Paper No. 108 Ga and Application Paper No. 112 Ga, have been rejected and for a mandamus to be issued to the learned Appellate Court i.e. the Court of the learned Additional District Judge, Court No. 7, Bijnor to allow the said applications.

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Mr. Krishna Mohan Garg, learned counsel for the tenants-petitioners has submitted that the landlord-respondent filed a Release Application under section 21(1)(a) for release of shop situated at Mohalla Mahajnan, Qasba and Pragana Kiratpur,

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Tehsil Najibabad, district Bijnor, which was in

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possession of the petitioners, who had inherited the tenancy from their ancestors. In the release application, the landlord-respondent had stated that he had purchased the shop in question in 1990 and the said shop is required to do his business of Sarrafa, as he was presently doing his business in the shop of his brother Arvind Kumar. The release application was registered as P.A. Case No. 7 of 2009, and after exchange of pleadings, the Prescribed Authority, Najibabad by its order dated 05.04.2016 allowed the release application.

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The tenants-petitioners thereafter filed a Rent Control Appeal, which was being considered by the learned Additional District Judge, Court No. 7, Bijnor. During the course of the pendency of the appeal, the memo of the appeal was amended by the tenants-petitioners bringing on record the subsequent developments, viz., purchase of shop by the landlord-respondent in the name of his real Aunt Smt. Saroj Rani, and starting of a new business in the said shop, which is situated on the southern side of the shop in dispute.

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The tenants-petitioners also moved an

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application for amendment in the written statement, which was allowed on 21.02.2018. After amendment in the written statement, the landlord-respondent was given opportunity to submit his replication to the amended written statement, which was also filed by him on 06.03.2018.

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The tenants-petitioners thereafter filed an Application No. 100 Ga for leading evidence through affidavit on 14.03.2018. The said application was also allowed on the same date, and in support of their contention in the amended written statement and the amended memo of appeal, affidavit of evidence was filed through an application. The landlord was given opportunity to rebut such evidence by filing his affidavit of rebuttal of evidence. The landlord-respondent brought on record through this affidavit, certain incorrect facts and in reply to the said affidavit, the tenants-petitioners filed their Application No. 108 Ga, which has been rejected on the ground that there is no provision for taking on record the reply to the replication. Moreover another application No. 112 Ga for issuance of Commission

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has also been rejected by the learned Appellate Court.

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Mr. Krishna Mohan Garg, learned counsel for the tenants-petitioners has submitted that it is settled position in law that once an affidavit has been filed by the landlord-respondent controverting the affidavit of the tenants-petitioners and no rebuttal to the same is filed by the petitioners, it would mean an admission on their part of the contentions raised by the respondent.

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The application for issuance of Commission similarly has been rejected on wholly erroneous ground that the Commission cannot be issued for collecting additional evidence.

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Learned counsel for the petitioners has placed reliance upon a judgment of Hon'ble Supreme Court in Pratima Chowdhury vs Kalpana Mukherjee and Another , 2014 (4) SCC 196, which related to the matter being referred to the Arbitrator, and thereafter during the pendency of the matter before the Cooperative Tribunal, a rejoinder affidavit being filed. The Supreme Court observed in paragraph 23 that the rejoinder

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affidavit after being filed with permission of the Tribunal could not have been ignored. The Supreme Court observed that pleadings between the parties could be considered as complete only after the appellant was permitted to file a rejoinder (in case she desired to do so). She actually filed a rejoinder which was taken on record by the Arbitrator. Both parties were permitted to lead evidence, not only on the factual position emerging from the complaint filed by the appellant and the written replies filed in response thereto by respondent, and the Society, but also, the factual position highlighted by appellant in her rejoinder affidavit. The Supreme Court observed that the evidence led in support of the pleadings by means of rejoinder affidavit could not be ignored as the correct factual position was asserted by the appellant in her rejoinder. The factual narration by the appellant could not be excluded from consideration, while adjudicating upon the rival claims between the appellant and the respondent.

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Mr. Krishna Mohan Garg, learned counsel for the

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petitioners has also placed reliance upon a

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judgment rendered by this Court in Dwarika Nath

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Soni vs Bhagwan Dass Gupta, reported in 2003 (1) ARC 418, wherein this Court observed that to ascertain the correct factual position, issuance of Commission for inspection of certain shops, which were alleged to have been constructed by the landlord-respondent in the residential accommodation ought to have been issued, as by issuance of a Commission the vital aspect involved in the case relating to the exact position on the spot could be determined, and the order impugned denying local inspection by the Commission was set aside by this Court. This Court observed that if the landlord has constructed shops in the residential building, it would be a crucial fact, which would have an impact upon the controversy involved and considering the short time, it would take to make a local inspection, the Appellate Court should have exercised its discretion in favour of issuing Commission for local inspection.

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Mr. Jirendra Kumar, holding brief of Mr. Prasoon Tomar, learned counsel for the respondent has argued on the other hand that there is a difference between the filing of pleadings on affidavit and

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filing of evidence on affidavit. The replication, which is filed by the plaintiff-landlord was a part of the pleadings, but the same cannot be said with respect to an affidavit of evidence filed in reply by the tenants-appellants. The tenants-appellants had initially filed evidence on affidavit. In rebuttal, the landlord has also filed evidence on affidavit. The proceedings before the Prescribed Authority being summary proceedings, the matter ought to have ended there, and therefore, the reply of the evidence on affidavit by the tenants-appellants was rightly rejected.

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Mr Jitendra Kumar has referred to Order XIX Rule 1 of the Civil Procedure Code, and its proviso, and Uttar Pradesh Amendment thereof. It relates to the power of any Court at any time for sufficient reason to order that any particular fact or facts pleaded may be proved by affidavit, or that the affidavit of any witness may be read at the hearing.

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The proviso to the said Rule 1 states that where it appears to the court that either party bona fide desires the production of a witness for

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cross examination, such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

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In the Uttar Pradesh Amendment to Rule 1 of Order XIX, the proviso has been substituted, and it has been so notified "provided that if it appears to the Court, whether at the instance of either party or otherwise, and whether before or after the filing of such affidavit, that the production of such witness for cross-examination is necessary and his attendance can be procured, the Court shall order the attendance of such witness, whereupon the witness may be examined, cross-examined and reexamined".

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Rule 1-A has further been added to Order XIX Rule 1, which says that the Court may permit the evidence of the plaintiff to be given on affidavit.

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It has been submitted by Mr Jitendra Kumar that initially the tenants-petitioners had pleaded by amendment of their written statement that the shop had been purchased by the landlordrespondent in the name of his Aunt and he has started his business of Sarrafa in the said shop,

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which was actually the shop of the landlord and not of his Aunt. This evidence was filed on affidavit, and the landlord-respondent was given opportunity to rebut the same by filing his affidavit to prove that he had not got any shop, but had been permitted to do business in the shop owned by his Aunt only for a temporary period. After this evidence on affidavit was filed by the landlordrespondent, the tenants-petitioners wanted to file further evidence on affidavit, which is not contemplated in summary proceedings, and therefore, the application No. 108 Ga was rightly rejected. He has read out the order passed by the learned Appellate Court, which is to the same effect.

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With regard to the issuance of Commission and the application No. 112 Ga being filed by the tenants-appellants, Mr Jitendra Kumar, learned counsel for the respondent has argued on the basis of section 34 and Rule 27 of U.P. Act No. 13 of 1972 and the Rules framed thereunder to the effect that although the Prescribed Authority has the same power for holding any inquiry or hearing as are vested in the Civil Court under the Code of

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Civil Procedure by trying a suit, including the power of the inspecting the building or or its locality or issuing Commission for examination of witnesses or documents or local investigation. Under Rule 27, the Prescribed Authority, the Appellate Authority or Revising Authority may inspect a building for the purpose of deciding the case under section 21 or section 24 (1) or section 27 or section 28 but when it proposes to inspect a building for the purpose deciding the case it should follow the procedure as prescribed under Rule 27.

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Learned counsel for the landlord-respondent has read out the application No. 112 Ga filed by the tenants-appellants with respect to issuance of Commission and has pointed out that only additional evidence was sought to be collected by means of filing this application for issuance of Commission.

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Learned counsel for the landlord-respondent has also submitted that the Commission was requested only to ascertain the title of various shops situated in a different locality, and therefore,

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the Appellate Court rightly refused the issuance of such Commission.

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Mr. Krishna Mohan Garg, learned counsel for the tenants-petitioners in rejoinder has argued that although there is no provision for replication in pleadings under the Code of Civil Procedure, if an evidence has been filed on affidavit, which needs to be rebutted, Order XVIII of the Code of Civil Procedure will apply and not Order XIX Rule 1.

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Learned counsel for the tenants-petitioners has referred to Order XVIII of the Code of Civil Procedure as also Order XIX Rule 1 to state that production of evidence through affidavit is permissible even in suits and the same power is available at the discretion of the Prescribed Authority and the Appellate Authority under the U.P. Act No. 13 of 1972.

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Learned counsel for the tenants-petitioners has referred to section 34 of the U.P. Act No. 13 of 1972, and sub clause (c) of Sub-section (1) thereof that the power exists with the Prescribed Authority and the Appellate Authority or even Revising Authority for issuance of Commission for local

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investigation.

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Learned counsel for the tenants-petitioners has also referred to the need for issuance of such Commission in the case of the tenants-petitioners as it was submitted by the landlord-respondent that the tenants-petitioners were not doing any business at all in the shop in question, whereas his specific case that he was utilizing the shop for making Batasha and Bhura Shakkar . If a Commission had been issued as had been prayed in the Application No. 112 Ga, then it would have corroborated the pleadings and elucidated the pleadings, and would not have in any way prejudiced the landlord-respondent as the application was moved immediately, and without any delay after rebuttal by the landlordrespondent on affidavit of his affidavit of evidence.

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Learned counsel for the tenants-petitioners has submitted that a bare perusal of the application No. 112 Ga would show that the ownership of the landlord-respondent was never disputed at any stage of any of the shops, nor there was any prayer that the Commission Ameen should

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determine the title of the shops in question. The application No.112 Ga was filed for issuance of Commission only to inspect the shops owned by the landlord-respondent in the same locality, which were either lying vacant or were being utilized by the landlord-respondent to conduct his business, as such there was no bona fide need of the landlord-respondent.

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Mr Jitendra Kumar, learned counsel for the respondent has pointed that submission of an evidence on affidavit is a procedure adopted by the Prescribed Authority in summary proceedings only to avoid further delay in deciding the release application. Once evidence on affidavit is filed by the landlord-respondent and evidence on affidavit is filed by the tenants-petitioners thereafter, the Prescribed Authority or the Appellate Authority has only to consider the evidence filed by either of the parties and decide the matter. Permitting additional evidence to be filed through affidavit or additional evidence to be collected through Commission would endlessly delay the matter. No such elaborate procedure is contemplated while deciding the release application for bona fide

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need.

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Mr Krishna Mohan Garg, learned counsel for the tenants-petitioners on the other hand has pointed out that Rule 27, which was referred to by the learned counsel for the landlord-respondent is inapplicable to the facts of the case as it relates to section 34 sub-section (8) and not to section 34 sub section (1) (c) of U.P. Act No. 13 of 1972.

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Mr Krishna Mohan Garg, learned counsel for the tenants-petitioners has further argued that under section 34 sub section (1)(c) receiving evidence on affidavit is permitted and receiving rejoinder evidence on affidavit is also implicit therein and thus, his rejoinder could not have been refused by the Appellate Court.

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Having considered the arguments made by the learned counsel for the tenants-petitioners as well as by the landlord-respondent, this Court is of the view that once evidence on affidavit was permitted to be adduced by the Appellate Authority, then to do complete justice between the parties, the tenants-petitioners' affidavit of evidence in rejoinder to the rebuttal filed by the landlord-

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respondent ought to have been taken on record. It would have avoided multiplicity of the litigation, and the parties rushing to this Court, and further delaying the decision in appeal. To the same effect would have been an order for issuance of Commission as the main contention between the parties was that the landlord-respondent had alternative accommodation for setting up of his business viz., shops in the same locality of the city of Bijnor, and he had indeed set up his business in one of the said shops. This would certainly have had an impact on the decision to be taken by the Appellate Authority for deciding whether the bona fide need set up by the landlord-respondent was indeed genuine. By refusing to issue such Commission to elucidate the pleadings already on record filed through affidavit by either of the parties, the matter has been unnecessarily delayed.

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Consequently, this Court quashes the order dated 04.04.2018 passed by the Appellate Court rejecting the Application No. 108 Ga and Application No. 112 Ga filed by the tenantspetitioners.

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The matter is remanded to the Appellate Court, learned Additional District Judge, Court No. 7, Bijnor to decide afresh both the applications moved by the tenants-petitioners at the earliest on the basis of material already on record, without giving opportunity to either of the parties to further file objections. Such applications shall be decided on merits and strictly in accordance with law within a period of three weeks from the date a certified copy of this order is produced before the Appellate Court.

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The writ petition is allowed to this extent.

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Order Date :- 2.5.2018 Sazia

Shaukin and 15 Others v. Manoj Kumar and 4 Others

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Shaukin and 15 Others v. Manoj Kumar and 4 Others

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