Natthi Lal (Since Deceased) vs. U.P. Avas Evam Vikas Parishad

Court No. - 4 Case :- MATTERS UNDER ARTICLE 227 No. - 1480 of 2022

Petitioner :- Natthi Lal (Since Deceased) Respondent :- U.P. Avas Evam Vikas Parishad Counsel for Petitioner :- Sudhanshu Kumar,Swapnil Kumar Counsel for Respondent :- Nipun Singh

Hon'ble Salil Kumar Rai,J.

Heard Shri Swapnil Kumar, counsel for the petitioner and Shri Nipun Singh, counsel for the defendant-respondent.

The present petition under Article 227 has been filed challenging the order dated 13.1.2022 passed by the Additional District and Session Judge, Court No.26, Agra.

The facts of the case are that the predecessor of the petitioner instituted Original Suit No.598 of 1986 for a permanent prohibitory injunction restraining the defendant-respondent i.e., U.P Avas Evam Vikas Parishad from interfering in his possession over Plot No.798 which the respondent pleaded, was acquired by the defendant-respondent through a notifications published under Section 28/32 of the U.P Avas Evam Vikas Parishad, Adhiniyam 1965 (hereinafter referred to as Act, 1965). The plaintiff denied that Plot No.798 was acquired by the defendant-respondent. During the trial of Original Suit No.598 of 1986, the defendant-respondent filed the award of the Special Land Acquisition Officer regarding the acquired plot and also a demand raised by the plaintiff seeking compensation of Plot No.798 at the rate of Rs.150/- per square yard. An allotment letter allotting the said plot to the respondent was also filed which showed that out of 1 Bigha 7 Biswa of Plot No.798 which was acquired by the Government, 10 Biswa in the aforesaid plot was not allotted to the Parishad. The Parishad also produced witnesses to prove their possession over the suit property. Interestingly, neither the plaintiff nor the defendant-respondent filed the notifications issued under Section 28 & 32 of the Act, 1965. The trial court vide its judgment and decree dated 22.3.1997 dismissed Original Suit No.598 of 1986 holding that from the award and the demand raised by the petitioner and the allotment letter, it was evident that Plot No.798 except the 10 Biswa in the aforesaid plot had been acquired. The decree dated 22.3.1997 passed by the trial court has been challenged by the plaintiff in Civil Appeal No.106 of 1997 which at present is pending before the Additional District and Session Judge, Court No.26, Agra. In the aforesaid appeal, the defendantrespondent filed an application marked as Paper No.118- Ga under Order 41 Rule 27 Code of Civil Procedure (hereinafter referred to as C.P.C.) praying for permission to file as additional evidence the notifications issued under Section 28 & 32 of the Act, 1965 as well as the revenue map showing the plots acquired through the aforesaid notifications. The said application has been allowed by the appeal court vide its order dated 13.1.2022, hence the present petition.

It was argued by the counsel for the petitioner that the necessary conditions for admitting additional evidence in appeal as provided in Order 41 Rule 27 C.P.C. did not exist and therefore, the defendant-respondent could not have been permitted to file additional evidence. It was further argued that the application filed under Order 41 Rules 27 C.P.C. can, in view of the judgment of Supreme Court in Union of India versus Ibrahim Uddin and another (2012) 8 Supreme Court Cases 148, be considered only at the stage of final hearing and therefore, the appeal court had exceeded its jurisdiction in considering and allowing the application for additional evidence. It was argued that for the aforesaid reasons, the appeal court has committed an error of law apparent on the face of record in allowing the application marked as Paper No. 118 Ga through its order dated 13.1.2022 and the order is liable to be quashed.

Rebutting the argument of the counsel for the petitioner, Shri Nipun Singh, counsel for the respondent has supported the order dated 13.1.2022 and the reasons given in the same and has argued that the petition is liable to be dismissed.

I have considered the submissions of the counsel for the parties.

The rival pleas of the parties that the suit property was or was not acquired by the Government had to be proved by the notifications issued under Sections 28 & 32 of the Act, 1965. The defendant-respondent had pleaded during the trial that the notification under Section 28 was issued on 4.4.1970 and the notification under Section 32 was issued on 20.6.1980. The plea of the plaintiff was that through the said notification Plot No.798, i.e., the suit property was not acquired. Interestingly neither the plaintiff nor the defendant filed the notification issued under Sections 28 and 32 of the Act, 1965. The appeal court in its order dated 13.1.2022 has held that the notifications were relevant evidence and it was not possible to decide the rights and liabilities of the parties without considering the aforesaid notification. The appeal court has considered the notification necessary to pronounce a judgment on the issue between the parties. There is no illegality in the opinion of the appeal court calling for interference by this court.

So far as the stage of consideration of the application under Order 41 Rule 27 is concerned, the counsel for the petitioner has relied on the judgment of the Supreme Court reported in Ibrahim Uddin and another (Supra). The counsel for the petitioner has specifically relied on the observations of the Supreme Court in Paragraph Nos.49 and 52 of the aforesaid judgment which are reproduced below:-

"49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

52.Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."

The procedure to be followed by the appeal court in an appeal filed under Section 96 C.P.C is prescribed in Order 41 C.P.C. The provisions from Order 41 Rule 9 to Order 41 Rule 14 C.P.C. relate to procedure to be followed by the Court on admission of appeal. After the appeal is registered under Order 41 Rule 9 C.P.C., the appeal court, under Order 41 Rule 11 C.P.C. is required to fix a day for hearing the appellant or his pleader. If the appellant or his pleader does not appear on the day fixed for hearing, the appeal court may dismiss the appeal and can also dismiss the appeal after hearing the appellant or his pleader under Order 41 Rule 11(4) C.P.C. However, if the appeal is not dismissed under Order 41 Rule, 11, the appeal court, under Order 41 Rule 12 C.P.C., shall fix a day for hearing the appeal with reference to the current business of the Court. Order 41 Rule 16 C.P.C. prescribes the procedure for service of notice on the opposite party in the appeal. Order 41 Rule 16 C.P.C to Order 41 Rule 29 C.P.C. prescribe the procedure for hearing the appeal. The provisions from Order 41 Rule 9 to Order 41 Rule 14 are included in the category 'Procedure on admission of appeal' and provisions from Order 41 Rule 16 to Order 41 Rule 29 are included under the head 'Procedure on hearing'. Order 41 Rule 16 C.P.C. provides that on the day fixed for hearing, the appellant shall be heard in support of the appeal and after the appellant is heard, the respondent shall be heard against the appeal. A reading of Order 41 show that the stage of Order 41 Rule 16 is the stage of final hearing of the appeal. The phrase final hearing contained in the observations of the Supreme Court in Paragraph Nos.49 & 52 of the judgment is only to distinguish the final hearing from hearing on admission Order 41 Rule 11 C.P.C. The aforesaid judgment of the Supreme Court implies that the application under Order 41 Rule 27 C.P.C. will be considered only after the appeal is accepted for hearing after notices are issued to the respondents.

In the present case, the defendants/opposite party has appeared in appeal. Obviously, the appeal is not at the stage of hearing under order 41 Rule 11 C.P.C. and is a stage stipulated in Order 41 Rule 16 C.P.C.

In view of the aforesaid, there is no illegality in the order dated 13.1.2022 passed by the court below so as to occasion interference by this Court under Article 227 of the Constitution of India.

The petition lacks merit and is dismissed.

Order Date :- 24.3.2022

Digitally signed by ITU BANERJEE Date: 2022.03.31 18:34:27 IST Reason: Location: High Court of Judicature at Allahabad