# Anil Mehrotra v. Addl. Session Judge Court No. 15 Lucknow & Ors

- **Citation:** (2019) 2 ILRA 1181
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-17
- **Case number:** Rent Control No. 64 of 2015
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-mehrotra-v-addl-session-judge-court-no-15-lucknow-ors-44574
- **Pages:** 9

## Headnote

Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A - Release application for
vacating the premises - appeal under
Section 22 - Application under Order 41
Rule 27(aa) CPC for taking copy of the sale
deed as additional evidence. (Para 3, 4 & 5)

It is well established that the additional
evidence can be placed at appellate stage; if
the trial court has refused to take additional
evidence which ought to have been admitted,
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 the Appellate Court
requires any document to be produced or any
witness to be examined to enable it to
pronounce
judgment,
or
for
any
other
substantial cause. (Para 14)

Held:- The Additional District Judge has
committed manifest error of law in passing the
impugned order. The Additional District Judge
has failed to appreciate the ingredients under
Order 41 Rule 27 (aa) CPC and has proceeded
to allow the application in a very cursory
manner. (Para-17)

Writ petition allowed (E-7)

List of Cases Cited: -

## Text

2 All. Anil Mehrotra Vs Addl. Session Judge Court No. 15 Lucknow & Ors.
1181
Constitution of India in the facts and
circumstances of the case and does not
interfere with the impugned order, as,
substantial justice has been done in the
matter. Consequently the petitioner shall
not be entitled to continue as Gram
Pradhan of Gram Panchayat Barauli.
Interim order granted earlier stands
vacated.

23. This judgment shall not be
treated as an affirmation of the powers of
the District Magistrate/District Election
Officer to pass such orders, but as a
refusal by this Court to exercise its
discretionary and equity jurisdiction for
the above reasons.

24. Till elections to the office of
Gram Pradhan of Gram Panchayat Barauli
are held the District Magistrate shall make
interim arrangement in terms of Section
12-J of the Act, 1947.

25. For these reasons the writ
petition is dismissed.
----------

(2019)10ILR A 1181

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.09.2019

BEFORE

THE HON'BLE IRSHAD ALI, J.

Rent Control No. 64 of 2015

Anil Mehrotra ...Petitioner
Versus
Addl. Session Judge Court No. 15
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vijay Krishna
Counsel for the Respondents:
Sri H.N. Tiwari, Sri Jagdish Prasad Vaish, Sri
Nagendra Pratap Singh, Sri Shiwa Kant Tiwari

A. U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 -
Section 21(1) A - Release application for
vacating the premises - appeal under
Section 22 - Application under Order 41
Rule 27(aa) CPC for taking copy of the sale
deed as additional evidence. (Para 3, 4 & 5)

It is well established that the additional
evidence can be placed at appellate stage; if
the trial court has refused to take additional
evidence which ought to have been admitted,
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 the Appellate Court
requires any document to be produced or any
witness to be examined to enable it to
pronounce
judgment,
or
for
any
other
substantial cause. (Para 14)

Held:- The Additional District Judge has
committed manifest error of law in passing the
impugned order. The Additional District Judge
has failed to appreciate the ingredients under
Order 41 Rule 27 (aa) CPC and has proceeded
to allow the application in a very cursory
manner. (Para-17)

Writ petition allowed (E-7)

List of Cases Cited: -

1. Rajkali Vs St. of U.P. & ors. (2014) 1 JCLR 494

2. Kailash Chandra Vs A.D.J. Sitapur (2013) 2
ARC 797

3. Union of India Vs Ibrahim Uddin & anr.
(2012) 8 SCC 148
(Delivered by Hon'ble Irshad Ali, J.)

1) Heard Sri N.K. Seth, learned
Senior Counsel assisted by Sri Vijay
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
Krishna, learned counsel for the petitioner
and to Sri Shiwa Kant Tiwari, learned
counsel for respondent Nos.2 to 5.

2) By means of the present writ
petition, the petitioner is challenging the
order passed by respondent No.1 dated
27.05.2015 permitting
the
additional
evidence to be adduced at appellate stage
in the shape of sale deed.

3) Factual matrix of the case is that
respondent Nos.2 to 5 filed release
application under Section 21(1)(A) of
U.P. Act No.13 of 1972 against the
petitioner for vacating the premises of
308/55
Jauhari
Mohalla,
Chowk,
Lucknow. The petitioner filed written
statement denying the title of respondent
Nos.2 to 5 and asserted that the premises
is owned by Sri Radha Krishna Mandir
(Lala Shyam Lal Girdhari Lal Agarwal)
and the rent is being paid to the Manager
of the Jankidas Puran Chand Trust and in
support thereof, filed rent receipt issued
by the trust.

4) The respondent Nos.2 to 5 filed
affidavit and the petitioner also filed his
affidavit. The prescribed authority after
leading evidence and recording statement,
allowed the release application against the
petitioner vide order dated 31.07.2014.

5) Feeling aggrieved, the petitioner
filed appeal under Section 22 of U.P. Act
No.13 of 1972 before the District Judge,
Lucknow, which has been admitted and
transferred to the Court of Additional
District Judge, Court No.15, Lucknow for
disposal. The respondent Nos.2 to 5 filed
an application for taking copy of the sale
deed as additional evidence under Order
41 Rule 27 CPC. The Additional District
Judge
vide
impugned
order
dated
27.05.2015
allowed
the
application,
which has been impugned in the present
writ petition.

6) Submission of learned Senior
Counsel for the petitioner is that under the
provisions of Order 41 Rule 27 CPC,
there are exceptions, which have not been
explained in the application that how the
fact in regard to sale deed came into
knowledge of respondent Nos.2 to 5 and
due to non disclosure of this fact, the
order passed on the application is illegal.
The appellate court has also not recorded
finding on the point of Order 41 Rule
27(aa) CPC and has proceeded to allow
the application. Thus, the submission is
that without explaining the due diligence
in not bringing on record the additional
evidence, the application would not have
been
allowed.
In
support
of
his
submission, he placed reliance upon
following judgments:

(i) Rajkali Vs. State of U.P.
and others; 2014 (1) JCLR 494,
paragraph Nos.4, 7, 8 and 9, (ii) Kailash
Chandra Vs. Additional District Judge,
Sitapur; 2013 (2) ARC 797 and the last
judgment has been produced, which was
noticed by the Additional District Judge
while passing the impugned order i.e.
Union of India Vs. Ibrahim Uddin and
another; 2012 (8) SCC 148, para 36, 39
to 46, 48, 52 and 53.

7) On the other hand, learned
counsel for respondent Nos.2 to 5
submitted that in the application moved
under Section 41 Rule 27 CPC, it has
been disclosed that the respondents
applied for certified copy of the sale deed
and after obtaining it, they moved the
application for taking as additional
evidence.
2 All. Anil Mehrotra Vs Addl. Session Judge Court No. 15 Lucknow & Ors.
1183

8) He further submitted that the
Additional District Judge has recorded
finding in regard to due diligence in
regard to non filing of sale deed at the
trial stage, therefore, his submission is
that there is no illegality or infirmity in
the
order
under
challenge
by
the
petitioner.

9) He next submitted that Hon'ble
Supreme Court in the case of Union of
India
(Supra)
has
considered
the
ingredients required permitting additional
evidence to be adduced at appellate stage
and taking notice of that, the judgment
was passed by the Additional District
Judge by recording cogent reasons, thus,
the writ petition being misconceived is
liable to be dismissed.

10)

Having
heard
the
rival
contentions advanced by learned counsel
for the parties, I perused the material on
record as well as the impugned order
under challenge in the writ petition and
the judgments relied upon by learned
counsel for the petitioner.

11) To resolve the controversy
involved in the present writ petition, the
provisions contained under Order 41 Rule
27 CPC is being quoted below:

"27. Production of additional
evidence in Appellate Court - (1) The
parties to an appeal shall not be entitled
to produce additional evidence, whether
oral or documentary, in the Appellate
Court. But if -

(a) the Court from whose decree
the appeal is preferred has refused to
admit evidence which ought to have been
admitted, or

[(aa) the party seeking to
produce additional evidence, establishes
that notwithstanding the exercise of due
deligence, such evidence was not witin 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]

(b) the Appellate Court requires
any document to be produced or any
witness to be examined to enable it to
pronounce judgment, or for any other
substantial cause,

the Appellate Court may allow
such evidence or document to be
produced, or witness to be examined.

(2)
Wherever
additional
evidence is allowed to be produced by an
Appellate Court, the Court shall record
the reason for its admission."

12) On perusal of the provisions
referred herein above, it is apparent on the
face
of
it
that
there
are
three
contingencies, which are required to be
taken into consideration while accepting
the additional evidence.

13) The judgments relied upon by
learned Senior Counsel for the petitioner
on the point involved in the matter are as
under:

(i) Rajkali Vs. State of U.P.
and others (Supra) :

"4. The second relief claimed in
this writ petition is against the impugned
order dated 10.07.2013, whereby the
appellate
court
has
dismissed
the
application
19Ga
of
the
appellant
petitioner filed under Order XLI Rule 27
of the Code of Civil Procedure. Learned
counsel for the petitioner has submitted
that although there is no mention of the
sale deed dated 27.01.2006 in the plaint
nor nay relief has been sought against the
said sale deed, the additional document
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
which the petitioner appellant wanted to
bring on record under order XLI Rule 27
of the Code of Civil Procedure has direct
relation with the unregistered agreement
of sale of 1999, which was assailed in the
suit itself. He therefore, states that by
rejection of the application Under Order
XLI Rule 27 of the Code of Civil
Procedure, the court below has committed
an illegality. He does not dispute that the
appeal is still pending.

7. The second ground for which
the application under Order XLI Rule 27
of the Code of Civil procedure has been
rejected is that the Khatauni which is
sought to be brought on record relating to
the sale deed of 2006 does not find
mention in the plaint and there is no
recitation about the sale deed of 2006 in
the plaint as such the Khatauni based
thereupon has no relevance in the present
appeal, hence cannot be admitted in
evidence. It has also been recorded that
only such document can be taken as an
additional evidence at the appellate stage
which enable the court to effictively
decide the real controversy between the
parties. However, since there is no
pleading relating to the sale deed of 2006
then the Khatauni relating thereto cannot
be admitted in evidence.

8. No error can be found in the
view taken by the appellate court in the
impugned
order
dated
23.08.2008,
whereby the application 19Ga of the
appellant petitioner under Order XLI
Rule 27 of the Code of Civil Procedure
has been rejected. There is no merit in
this writ petition. It is accordingly
dismissed.

9. No order is passed as to
costs."

(ii)
Kailash
Chandra
Vs.
Additional
District
Judge,
Sitapur
(Supra):

"The scrutiny of said provision
indicates that the parties to appeal shall
not be entitled to produce additional
evidence whether oral or documentary in
the appellate Court except under three
circumstances; (i) when the Trial Court
whose decree is under challenge in
appeal has refused to admit evidence
which ought to have been admitted, (ii)
when
the
party
seeking
additional
evidence, establishes before the appellate
Court that in spite of exercise of due
diligence, such evidence was not within
his knowledge or could not, after the
exercise of due diligence, be produced by
him before the Trial Court and (iii) when
the
appellate
Court
requires
any
document to be produced or any witness
to be examined to enable it to pronounce
judgment, or for any other substantial
clause.

The case of petitioner at the
most can be examined under exception
no. (ii) as given above.

Learned counsel for petitioner
has laid great stress on his argument that
once he had pleaded before the Trial
Court about the said evidence and the
said evidence could not be produced, he
should be allowed to produce the said
evidence at the stage of appeal.

The scope of Order XLI Rule 27
of the Code has been examined in detail
by the Apex Court in the case of Union of
India Vs. Ibrahim Uddin and Another
(supra) wherein the Apex Court has
categorically held that in case there is
inadvertence on the party of any party or
there was inability to understand the legal
issue involved or due to wrong advice of a
pleader or negligence of a pleader or that
a party did not realize the importance of a
document
does
not
constitute
a
"substantial cause" within the meaning of
this rule. The mere fact that certain
2 All. Anil Mehrotra Vs Addl. Session Judge Court No. 15 Lucknow & Ors.
1185
evidence is important, is not in itself a
sufficient ground for admitting that
evidence in appeal.

It is to be observed that the
appellate Court should not ordinarily
allow new evidence to be adduced in
order to enable a party to raise a new
point in appeal. It is the onus on the part
of the party who wants to rely on evidence
to prove it at the relevant time. In case a
party has failed to discharge the onus, the
Court cannot in such a case permit the
said party to improve his case by
producing additional evidence.

In the case of Vimal Chand
Ghevarchan Jain and others (supra),
reliance on which has been placed by
learned counsel for petitioner, the Apex
Court has no doubt observed that once
the written statement was permitted to be
amended the additional evidence pursuant
thereto was also permitted to be adduced.
The first appellate Court had a duty to
properly appreciate the evidence in the
light of the pleadings of the parties. It is
true that when a pleading is amended, it
takes effect from the date when the
original one is filed.

The appellate Court in exercise
of its discretionary jurisdiction and
subject to fulfillment of the conditions
under Order XLI Rule 27 of the Code may
allow the parties to adduce additional
evidence. However, it does not mean that
the application under Order XLI Rule 27
of the Code can be allowed in routine
manner. The Court has to be satisfied
while allowing such application as to
whether the ingredients of Order XLI Rule
27 of the Code are fulfilled or not.

As such, even if the petitioner
had mentioned in his pleadings before the
Trial Court about the said evidence but
the same was not produced at the stage of
evidence, the same could not be allowed
to be brought on record at the appellate
stage by moving application under Order
XLI Rule 27 of the Code.

In
the
given
facts
and
circumstances of the case in hand, I am of
the view that the application moved under
Order XLI Rule 27 could not have been
allowed by the appellate Court, as such, I
do not find any infirmity or illegality in
the order impugned. "

(iii)
Union
of
India
Vs.
Ibrahim Uddin and another (Supra)
para 39 to 46, 48, 52 and 53:

"36. The general principle is
that the Appellate Court should not travel
outside the record of the lower court and
cannot take any evidence in appeal.
However, as an exception, Order XLI
Rule 27 CPC enables the Appellate Court
to take additional evidence in exceptional
circumstances. The Appellate Court may
permit additional evidence only and only
if the conditions laid down in this rule are
found to exist. The parties are not
entitled, as of right, to the admission of
such evidence. Thus, provision does not
apply, when on the basis of evidence on
record,
the
Appellate
Court
can
pronounce a satisfactory judgment. The
matter is entirely within the discretion of
the court and is to be used sparingly.
Such a discretion is only a judicial
discretion circumscribed by the limitation
specified in the rule itself. (Vide: K.
Venkataramiah v. A. Seetharama Reddy,
Municipal Corpn. Of Greater Bombay v.
Lala
Pancham,
Soonda
Ram
v.
Rameshwarlal and Syed Abdul Khader v.
Rami Reddy.

39. It is not the business of the
Appellate
Court
to
supplement
the
evidence adduced by one party or the
other in the lower Court. Hence, in the
absence of satisfactory reasons for the
non- production of the evidence in the
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
trial court, additional evidence should not
be admitted in appeal as a party guilty of
remissness in the lower court is not
entitled to the indulgence of being
allowed to give further evidence under
this rule. So a party who had ample
opportunity to produce certain evidence
in the lower court but failed to do so or
elected not to do so, cannot have it
admitted in appeal. (Vide: State of U.P. v.
Manbodhan
Lal
Srivastava
and
S.
Rajagopal v. C.M. Armugam.

40. The inadvertence of the
party or his inability to understand the
legal issues involved or the wrong advice
of a pleader or the negligence of a
pleader or that the party did not realise
the importance of a document does not
constitute a "substantial cause" within the
meaning of this rule. The mere fact that
certain evidence is important, is not in
itself a sufficient ground for admitting
that evidence in appeal.

41. The words "for any other
substantial cause" must be read with the
word "requires" in the beginning of
sentence, so that it is only where, for any
other substantial cause, the Appellate
Court requires additional evidence, that
this rule will apply, e.g., when evidence
has been taken by the lower Court so
imperfectly that the Appellate Court
cannot pass a satisfactory judgment.

41. Whenever the appellate
Court admits additional evidence it
should record its reasons for doing so.
(Sub-rule 2). It is a salutary provision
which operates as a check against a too
easy reception of evidence at a late stage
of litigation and the statement of reasons
may inspire confidence and disarm
objection.
Another
reason
of
this
requirement is that, where a further
appeal lies from the decision, the record
of reasons will be useful and necessary
for the Court of further appeal to see, if
the discretion under this rule has been
properly exercised by the Court below.
The omission to record the reasons must,
therefore, be treated as a serious defect.
But this provision is only directory and
not mandatory, if the reception of such
evidence can be justified under the rule.

43. The reasons need not be
recorded in a separate order provided
they are embodied in the judgment of the
appellate Court. A mere reference to the
peculiar circumstances of the case, or
mere statement that the evidence is
necessary to pronounce judgment, or that
the additional evidence is required to be
admitted in the interests of justice, or that
there is no reason to reject the prayer for
the admission of the additional evidence,
is not enough comp1iance with the
requirement as to recording of reasons.

44.
It
is
a
settled
legal
proposition that not only administrative
order, but also judicial order must be
supported by reasons, recorded in it.
Thus, while deciding an issue, the Court
is bound to give reasons for its
conclusion. It is the duty and obligation
on the part of the Court to record reasons
while disposing of the case. The hallmark
of order and exercise of judicial power by
a judicial forum is for the forum to
disclose its reasons by itself and giving of
reasons has always been insisted upon as
one of the fundamentals of sound
administration of the justice - delivery
system, to make it known that there had
been proper and due application of mind
to the issue before the Court and also as
an essential requisite of the principles of
natural justice. The reason is the
heartbeat
of
every
conclusion.
It
introduces clarity in an order and without
the same, the order becomes lifeless.
Reasons
substitute
subjectivity
with
2 All. Anil Mehrotra Vs Addl. Session Judge Court No. 15 Lucknow & Ors.
1187
objectivity. The absence of reasons
renders
an
order
indefensible/unsustainable
particularly
when the order is subject to further
challenge
before
a
higher
forum.
Recording of reasons is principle of
natural justice and every judicial order
must be supported by reasons recorded in
writing. It ensures transparency and
fairness in decision making. The person
who is adversely affected must know why
his application has been rejected. (Vide:
State of Orissa v. Dhaniram Luhar, State
of Uttaranchal v. Sunil Kumar Singh
Negi, Victoria Memorial Hall v. Howrah
Ganatantrik Nagrik Samity and Sant Lal
Gupta v. Modern Coop. Group Housing
Society Ltd).

45. In City Improvement Trust
Board v. H. Narayanaian, while dealing
with the issue, a three judge Bench of this
Court held as under: (SCC p. 20, para 28)

"28. We are of the opinion that
the High Court should have recorded its
reasons to show why it found the
admission of such evidence to be
necessary for some substantial reason.
And if it found it necessary to admit it an
opportunity should have been given to the
appellant to rebut any inference arising
from its insistence by leading other
evidence."

(Emphasis added)

A
similar
view
has
been
reiterated by this Court in Basayya I.
Mathad v. Radrayya S. Mathad.

46. A Constitution Bench of this
Court in K. Venkataramiah, while dealing
with the same issue held: (AIR p. 1529,
para 13)

"13. It is very much to be
desired that the courts of appeal should
not overlook the provisions of clause (2)
of the Rule and should record their
reasons
for
admitting
additional
evidence..... The omission to record
reason must, therefore, be treated as a
serious defect. Even so, we are unable to
persuade ourselves that this provision is
mandatory."

(Emphasis added)

In the said case, the court after
examining the record of the case came to
the conclusion that the appeal was heard
for a long time and the application for
taking additional evidence on record was
filed during the final hearing of the
appeal. In such a fact-situation, the order
allowing such application did not vitiate
for want of reasons.

48. To sum up on the issue, it
may be held that application for taking
additional evidence on record at a belated
stage cannot be filed as a matter of right.
The
court
can
consider
such
an
application with circumspection, provided
it is covered under either of the
prerequisite condition incorporated in the
statutory provisions itself. The discretion
is to be exercised by the court judicially
taking into consideration the relevance of
the document in respect of the issues
involved
in
the
case
and
the
circumstances under which such an
evidence could not be led in the court
below and as to whether the applicant
had prosecuted his case before the court
below diligently and as to whether such
evidence is required to pronounce the
judgment by the appellate court. In case
the court comes to the conclusion that the
application filed comes within the four
corners of the statutory provisions itself,
the evidence may be taken on record,
however, the court must record reasons
as on what basis such an application has
been allowed. However, the application
should not be moved at a belated stage.
1188 INDIAN LAW REPORTS ALLAHABAD SERIES

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.

53. In the instant case, the
application under Order XLI Rule 27
CPC was filed on 6.4.1998 and it was
allowed on 28.4.1999 though the first
appeal was heard and disposed of on
15.10.1999. In view of law referred to
hereinabove, the order dated 28.4.1999 is
just to be ignored."

14) On perusal of the aforesaid
judgments, it is well established that the
additional evidence can be placed at
appellate stage; if the trial court has
refused to take additional evidence which
ought to have been admitted, 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 orthe
Appellate Court requires any document to
be produced or any witness to be
examined to enable it to pronounce
judgment, or for any other substantial
cause.

15) On perusal of the provisions
contained under Order 41 Rule 27(aa)
CPC and the judgments referred herein
above, it is apparent that respondent
Nos.2 to 5 have no-where disclosed the
due diligence in as much as how they
came to know about the sale deed and
could not file the same before the trial
court. No reasons whatsoever has been
stated in the application, thus, the
appellate court while considering the
application has failed to appreciate the
ingredients, which are required to be
considered under Order 41 Rule 27 CPC.

16) On bare perusal of the order
impugned, it is evident that the appellate
court has not recorded satisfaction in
allowing the application under Order 41
Rule 27 CPC.

17) After thoughtful consideration of
the provisions contained under Order 41
Rule 27 CPC and the judgment placed before
the Court, this Court is of the opinion that the
Additional District Judge has committed
manifest error of law in passing the
impugned order. The Additional District
Judge has failed to appreciate the ingredients
under Order 41 Rule 27 (aa) CPC and has
proceeded to allow the application in a very
cursory manner.

18) In view of the above, the
impugned order dated 27.05.2015 is
hereby set aside.

19) The writ petition succeeds and is
allowed.

20) The Additional District Judge,
Lucknow is directed to reconsider the
2 All. Balvindar Singh Vs IV Addl. Distt. & Sessions Judge/Special Judge (E.C. Act), Bulandshahr & Ors. 1189
application filed by respondent Nos.2 to 5
and to pass appropriate order in accordance
with law as per observation made above and
to decide the same within a period of six
months from the date of production of a
certified copy of this order.

21) The parties are, however, restrained
to seek unnecessary adjournments in the
matter.

22) No order as to costs.
----------

(2019)10ILR A 1189

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.09.2019

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matter Under Article. 227 No. 3276 of 2019
(Civil)

Balvindar Singh ...Petitioner/Plaintiff
Versus
IV Addl. Distt. & Sessions Judge/
Special Judge (E.C. Act), Bulandshahar &
Ors. ...Respondents/Defendants

Counsel for the Petitioner:
Sri Rishu Mishra, Sri Uma Kant Mishra

Counsel for the Respondents:
Sri Anadi Krishna Narayana, Sri Sunil
Kumar Mishra

A. Code of Civil Procedure, 1908 - O-XXI,
Rules - 105 & 106 - petition-filed by a
decree holder -whose application-rejected
vide order impugned herein-by Executing
Court-in his absence -though expressly not
saying that the dismissal is in default.- the
date was not fixed for hearing-the order is
found to be manifestly illegal and liable to be
set aside.
Held: - It was certainly not a date that was fixed
for hearing the application within the meaning of
sub-rule (2) of Rule 105 of Order XXI C.P.C.
Thus, the order dismissing the Execution
Application on 16.4.2010 cannot be said to be an
order passed in exercise of jurisdiction under
Order XXI Rule 106 of the Code. That being so, a
restoration application, or an application to set
aside the order 16.4.2010 is not at all one made
under Rule 106 of Order XXI, so as to attract the
bar of limitation, under Sub-rule (3). It is clearly
an application under Section 151 CPC to which
the rule of limitation, under Sub-rule (3) of Rule
106 of Order XXI, does not apply. Since, the
impugned order dated 23.1.2019 proceeds
entirely on the basis that the application is barred
by limitation, which cannot be condoned treating
it in manifest error to be an application under
Order XXI Rule 106 of the Code, the impugned
order aforesaid passed by the learned IVth
Additional District Judge/Special Judge E.C. Act,
Bulandshahar is manifestly illegal and liable to
the set aside.

Writ Petition allowed (E-8)

List of Cases Cited: -

1. Khoobchand Jain and another vs. Kashi
Prasad and other

2. Deo Narayan Goala (Deceased by L.R.) and
others vs. Jagadish Pandit

3. Dambarudhar Mohanta vs. Mangulu Charan
Naik and others

4. Damodaran Pillai and others vs. South
Indian Bank Ltd

5. Arjun Prasad vs. Sameer Jahan Begum

6. State of U.P. vs. Saifi Abdul Hasan
Nimachawala

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution has been brought by a
decree holder to set aside an order passed
by the IVth Additional District and