# Mool Chand v. Sri Trilok Chand and others

- **Citation:** (2001) 1 ILRA 378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-06-22
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mool-chand-v-sri-trilok-chand-and-others-39746
- **Pages:** 4

## Text

1All] Mool Chand V. Sri Trilok Chand and others
378
fiction saying that something shall be
deemed to have been done which in fact,
in truth, has not been done, court has to
examine and ascertain as to for what
purpose and between what persons such
statutory fiction is to be resorted to.
Thereafter, full effect has to be given to
such statutory fiction is to be resorted to.
Thereafter, full effect has to be given to
such a statutory fiction and it has to be
carried to its logical conclusion.

10. The sufficiency or otherwise of
the accommodation acquired by the tenant
in a vacant state is also not required to be
gone into or sifted while declaring
deemed vacancy under Section 12 (3) of
the Act. This aspect of the matter was
considered by the apex court in a decision
dated 23rd April, 1997 in Civil Appeal No.
15575 of 1996- Prakash Chandra Rastogi
Vs. Rent Control and Eviction Officer,
Kanpur Nagar and others. In that case, an
argument was raised on behalf of the
tenant that the room constructed by him
was quite small and insufficient for
residential
use
and,
therefore,
the
construction of the said room should not
be treated as construction of a residential
structure so that the deemed vacancy
under the Act can be declared. The apex
court did not accept the said contention
because house itself was residential one
and the construction made in the open
terrace, even though small, could not be
held to be not at all suitable for residential
purpose.

11. In the conspectus of the above
facts, there can be no escape from the
conclusion
that
on account of the
acquisition in a vacant state of Daboli
house by the petitioner, a deemed vacancy
under Section 12 (3) of the Act had
occurred and consequently, the tenanted
accommodation was amenable for being
allotted or for being released in favour of
the land lord. When once the order of
vacancy had been passed after taking into
consideration the stand taken by the
petitioner on 29.5.2000, the subsequent
application moved by the petitioner on
8.6.2000 which was the date fixed for
consideration
of
the application for
release in favour of the land lord was
otiose. Ignoring the said application, the
Rent Control and Eviction Officer was
empowered and legally justified to pass
orders on ;the release application on the
date fixed. The order of vacancy dated
29.5.2000 and the subsequent order of
release dated 8.6.2000 do not suffer from
any infirmity. They had been passed
according to law.

12. It is, therefore, not a case in
which invocation of Article 226 of the
Constitution of India is warranted. The
writ petition is dismissed. Interim order
dated 22.6.2000, which has been extended
from time to time, shall stand discharged.

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INDIAN LAW REPORTS ALLAHABAD SERIES [2001
379
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By the Court

1. Heard the learned counsel for the
petitioner,
Sri
Ash
Kumar,
learned
counsel for respondent no. 1 and perused
the record.

2. This writ petition has been filed
for issued of a writ, order or direction in
the nature of certiorari quashing the order
date
12.01.2001
passed
by
XVth
Additional district Judge, Kanpur Nagar
in SCC revision No. 137 of 1999.

3. The respondents filed SCC suit
no. 95 of 1991 against the petitioner for
his ejectment and recovery of arrears of
rent and damages on the ground of
subletting and changing the user of the
premises. The petitioner contested the suit
denying the relationship of landlord and
tenant between the parties. The Trial
Court decreed the suit for ejectment as
well as arrears of rent and damages.
Aggrieved with the above judgement and
decree the petitioner filed SCC Revision
No.137 of 1999 before District Judge,
Kanpur
Nagar.
The
revision
was
transferred
to
the
Court
of
XVth
Additional District Judge, Kanpur Nagar
for disposal.

4. During pendency of the revision
the petitioner moved an application paper
no. 30-C before the Revisional Court
under Order XLI Rule 27 C.P.C. for
permission to adduce additional evidence
and to file papers per list 31-C. The
respondents filed objection against the
above application on the ground that
provisions of Order XLI Rule 27 C.P.C.
are not applicable to revision and there
was also no sufficient ground for allowing
the additional evidence.

5. Learned Additional District Judge
on hearing the learned counsel for the
parties held that provisions or Order XLI
Rule 27 C.P.C. are not applicable to
revision
proceeding,
but,
however,
additional evidence may be adduced in a
revision under Section 25 of provincial
Small causes, Court Act under the
inherent powers of the court. He further
held the additional evidence sought to be
adduced related to questions of fact and
would amount recording a fresh finding,
which was beyond the purview revisional
jurisdiction. With these observations he
rejected the application, vide impugned
order dated 12.01.2001.

6. The above order has been
challenged in this writ petition.

7. I have heard the learned counsel
for the parties, as narrated above. The
learned
counsel
for
the
petitioner
contended that assuming that provisions
of XLI Rule 27 C.P.C. are not applicable
to the revisional proceeding, additional
evidence may be admitted in the exercise
of inherent power of the Court. He placed
reliance of Division Bench case of this
1All] Mool Chand V. Sri Trilok Chand and others
380
Court in Virendra Singh Kushwaha vs.
VIIth Additional District Judge, Agra and
others, 1996 (2) ARC, 108. It was held in
the said case that in the exercise of
inherent power of the Court in its
revisional jurisdiction under Section 25 of
Provincial Small Cause Court Act. It was
further held in the said case that it is also
settled law that the additional evidence
urged to be allowed to be admitted must
be relevant to decide the real controversy
and the Court must feel that the admission
of the same is required in the interest of
justice i.e. it must meet the requirements
of provisions of Order XLI rule 27 C.P.C.

8. It was held in the case of Smt.
Gayatri Devi and others vs. Additional
District Judge/Special Judge (E.C. Act),
Etawah and another, 1992 (1) ARC, 148
that under inherent powers of the Court
for doing justice between the parties, the
revisional Court exercising its jurisdiction
under Section 25 of the Provincial Small
Cause Courts Act, has also the power to
take
additional
evidence
for
doing
complete justice between the parties.

9.

The
learned
counsel
for
respondent no. 1 contended that the
provisions of Order XLI Rule 27 C.P.C.
cannot be pressed into service for
admitting additional evidence in revision
under Section 25 of Provincial Small
Causes Courts Act. He placed reliance on
a Division Bench case of Babu Ram vs.
the Additional District Judge, Dehradun
and another, 1983 (1) ARC, 15, in which
it was held that Order XLI Rule 27 of the
Code of Civil Procedure confers right on
a court of appeal to admit additional
evidence. But, since that order has
expressly been excluded from application
to Provincial Small Cause court Act,
neither Order XLI Rule 27 in terms nor in
principle can be applied for taking
additional evidence. So far as a revision
under Section 25 of the Provincial Small
Causes Court Act is concerned, the Court
has a much narrower power than that of
the first appellate Court. Under Section
25, the Court can interfere only when the
decree or order made in any case decided
by a court of Small Causes was not
according to law. Order XLI Rule 27
cannot, therefore, be pressed into service
for admitting additional evidence in
revision
under
Section
25
of
the
provincial Small Cause Courts Act.

10. The settled legal position,
therefore, is that provisions of Order XLI
Rule 27 C.P.C. cannot be pressed into
service in a revision under Section 25 of
Provincial Small Cause Court Act, but if
it appears that additional evidence is
essential for doing justice between the
parties,
the
Revisional
Court
may
entertain
additional
evidence
in
the
exercise of inherent powers of the Court.

11. In the instant case the petitioner
wanted to examine. At Shiv Prasad and to
obtain expert report on the signature of
Chhedi Lal, father of petitioner on the
alleged agreement deed relied on by the
plaintiff. The case of the petitioner was
that respondent no. 1 was not landlord of
the premises in question, but Shiv Prasad
was landlord of the premises in question.
The petitioner was, therefore, aware of the
case taken by him at the initial stage and
he had to prove the case set up by him.
There is nothing in the application for
adducing additional evidence to show that
no with standing 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
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
381
against was passed or that he applied for
adducing above evidence and the court
had refused to admit the same. It is also
not the case of the petitioner that the
evidence sought to be adduced before
Revisional court was not within the
knowledge of the petitioner. Moreover, if
additional evidence sought to be adduced
was taken, the Revisional Court had to
record a finding of fact, which was
beyond
the
scope
of
revisional
jurisdiction as the Revisional Court had
no jurisdiction to interfere with the
finding of fact and has held in the case of
Babu Ram vs. Additional District Judge,
Dehradun (supra) Under Section 25 of
Provincial Small Causes Courts Act, the
Court cannot admit additional evidence
for reappraisal of the evidence or for
setting aside a finding of fact.

12. There is also nothing on record
to show that the additional evidence
sought to be adduced was essential in the
interest of justice. Contrary to it, the
admission of additional evidence would
have amounted in filling the lacunae in
the case of the petitioner. As such, the
admission of additional evidence as
rightly
refused.
The
petition
has,
therefore, no force and is, accordingly,
dismissed summarily.

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