The High Court dismissed a revision petition where counsel misled the court regarding the disposal of an application under Order 41 Rule 27 CPC. The court relied on a prior dismissal to prove disposal and imposed costs.
Petitioners to pay costs of Rs. 30,000/- to be deposited with the Rent Controller.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R. No. 894 of 2012(O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
C.R. No. 894 of 2012(O&M) Date of decision: 06.03.2012
Bhupinder Kaur and another
......Petitioners
Vs
Kirpal Singh and another
......Respondents
CORAM: HON'BLE MR.JUSTICE G.S.SANDHAWALIA
Present: Mr. Sanjay Gupta, Advocate, for the petitioners
Mr. Pankaj Jain, Advocate for the respondents
G.S.SANDHAWALIA J.(ORAL)
CM No.6000-CII of 2012
Application filed under Section 151 CPC seeking exemption from filing certified copies of Annexures P-3 to P-5 is allowed in view of the averments made in the application which is duly supported by an affidavit.
C.R. No. 894 of 2012
The present petition has been preferred by the tenants against whom ejectment application had been filed by the respondents-landlords. The ground of ejectment from the shop in question was for personal occupation to start business of landlord No. 1 and there was no objection from landlord No. 2 who is the brother. The eviction petition was allowed vide order dated 19.5.2010 after holding that the landlord requires the shop for his own use and occupation. The petitioners filed an appeal before the
C.R. No. 894 of 2012(O&M)
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Appellate Authority, SAS Nagar, Mohali wherein an application under Order 41 Rule 27 read with Section 151 CPC for grant of permission to produce additional affidavit was filed. By way of of additional evidence, the appellants wanted to produce copy of house tax assessment register showing that the landlords own two other shops. The Appellate Authority after taking into consideration the averments made in the application and the reply filed by the landlord came to the conclusion that the facts had already been considered by the Rent Controller and no ground was made out for allowing the application for additional evidence. It is pertinent to mention that six paragraphs of the judgment were devoted to the application filed under Order 41 Rule 27 read with Section 151 CPC and, thereafter, the findings recorded on the application by the Appellate Authority read as under:-
"The fact that the landlords own three more shops has already been considered by the learned Rent Controller. This fact was in the knowledge of the tenants/appellants from the very beginning. When this fact has already been considered by the learned Rent Controller, no ground for allowing the application for additional evidence is made out. More over even if the said documents are taken into consideration, as already mentioned above, the same do not help the tenants in any way.”
Resultantly the appeal was dismissed vide judgment dated 5.12.2011 and it was held that the requirement could not be said to be ingenuine and there was no scope for interference in the findings recorded by the learned Rent Controller.
Resultantly the present revision petition is filed. The following order was passed on 13.2.2012 whereby notice of motion was
C.R. No. 894 of 2012(O&M)
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issued and dispossession of the petitioners was stayed:-
“ It is, inter alia, argued by learned counsel for the petitioners that an application filed under Order 41 Rule 27 of the Code of Civil Procedure 1908 (for short 'CPC') before the Appellate Authority has remained undecided. He cites a decision of the Supreme Court in the case of "Sanjiv Goel vs. Avtar S. Sandhu" 2006(9) SCC 748” to contend that application should have been decided as otherwise it would lead to miscarriage of justice.
It is made clear to the learned counsel for the petitioners that if his statement is found to be incorrect, not only the petition would be dismissed for misleading the Court but exemplary cost would also be imposed.
Learned counsel for the petitioners reiterated his argument and stated that the application has not been decided. Notice of motion for 29.2.2012.
Dasti only.
Till then dispossession of petitioners shall remain stayed.”
On the last date of hearing counsel for the respondents had filed his power of attorney and pointed out that Appellate Authority in his judgment has devoted 6 paragraphs to the application under Order 41 Rule 27 of the Code of Civil Procedure and contended that a totally wrong statement had been made before this Court while persuading this Court to issue notice of motion and get interim order of stay.
Today also counsel for the petitioners has insisted and placed on record the certified copy of the order dated 5.12.2011 which reads as under:-
“Arguments concluded. Vide my separate judgment of even date, the present appeal has been dismissed, with no order as to costs. Record of the Ld. Rent Controller along with copy of
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this judgment be transmitted forthwith. Memo of costs be prepared accordingly. Appeal file be consigned to the Record Room.”
Counsel for the petitioners has contended that application under Order 41 Rule 27 of the Code of Civil Procedure should have been decided prior to the main appeal and has placed reliance on the judgment of Hon'ble Apex Court in the case of Sanjiv Goel vs. Avtar S. Sidhu, 2006(9) SCC 748 .
The submission of the counsel for the petitioners is without any basis and absolutely misconceived. In the case referred to by the petitioners, it is a case where an application was not decided by the Lower Appellate Court and neither Regular Second Appeal was entertained by the Court. The Hon'ble Supreme Court while deciding the case held that the said application should have been disposed of by the lower Appellate Court and non-disposal of the said application had caused miscarriage of justice. The provisions of Order 41 Rule 27 CPC are very clear in this context where application for additional evidence is to be entertained. The three conditions are as follows:-
(b) Where the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(c) Where the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any substantial cause.
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It is settled principle of law laid down by Hon'ble Supreme Court that there is a prohibition grafted against piece meal decision on the application under Order 41 Rule 27 CPC. The Hon'ble Supreme Court in State of Rajasthan vs. T.N. Sahani, 2001(1) PLR 294 has held in this manner. Accordingly, keeping in view the settled principles the Appellate Authority had decided the application for additional evidence alongwith the main appeal and come to a valid conclusion that the evidence which was sought to be produced had been considered by the learned Rent Controller and no ground was made out to produce additional evidence.
Keeping in view these facts, it is clear that statement made on 13.2.2012 by the counsel for the petitioners was absolutely incorrect. Infact it is surprising that even the Court had put the counsel for the petitioners on caveat regarding the statement which he is making, inspite of that counsel for the petitioners has persisted and stood by his statement. Resultantly, the present petition is liable to be dismissed in view of the conditional order whereby it was held that the petition would be dismissed for misleading the Court and exemplary cost would be imposed. Accordingly, present revision petition is dismissed and the petitioners are held liable to pay costs of Rs. 30,000/-. The said costs be deposited with the Rent Controller failing which Rent Controller shall recover the costs from the petitioners.
(G.S.SANDHAWALIA) JUDGE
06.03.2012
reena
2 issues framed by the court
Whether the statement by counsel regarding the non-decision of an application under Order 41 Rule 27 CPC was incorrect given the appellate order.
Whether the present revision petition is liable to be dismissed due to misleading the court.
Bhupinder Kaur and another
Kirpal Singh and another
G.S. SANDHAWALIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
