# Smt. Amrawati and others v. The

- **Citation:** (2005) 2 ILRA 386
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-05-26
- **Case number:** Civil Misc. Writ Petition No. 12671 of 1990
- **Bench:** Vikram Nath
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-amrawati-and-others-v-the-40459
- **Pages:** 7

## Headnote

Code of Civil Procedure-Order 50 Rule
1(8), Order 41 rule 27 readwith Small
Causes Courts Act, Section 17 and 25Additional
evidence-although
the
provision of Order 41 rule 27 are not
applicable-Document
sought
to
be
admitted are relevant and necessary to
arrive at a correct and proper decisionheld-revisional court correctly exercised
its jurisdiction by admitting additional
evidence-can not be interfered under
writ jurisdiction.

Held: Para 18

In the present case I have already
considered
and
recorded
that
the
documents sought to be admitted were
relevant and necessary for meeting out
justice between the parties and also for
the Court to arrive at a correct and
proper decision inter se between the
parties, therefore, the revisional court
has correctly exercised its jurisdiction in
admitting the additional evidence.
Case law discussed:
1979 ALJ 1263
1983 ARC-15
2 All] Smt. Amrawati and others V. The XI A.D.J., Moradabad and others
 387
1997 ARC-540
2003 J.T. (11) SC-438
AIR 1968 SCC-271
1992 AWC-273
2001 (9) SCC-245

## Text

386 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
13. The dictionaries, however, refer
to the common parlance and, therefore,
the reference to one's brother-in-law's son
as a nephew, would be quite right, say, in
a social conversation, although not quite
so right, if a lawyer were referring to that
relationship in his arguments made to a
judge in a Court of law.

14. On the basis of these materials
we have to take a decision whether the
explanation to Rules 165 prohibits a
brother-in-law's son by prohibiting a
nephew. We are unable to opine that in
that explanation nephew includes a
brother-in-law's son. We give a legally
restricted meaning to the word nephew
rather than give it a socially wide
meaning; where people's rights are
involved and curtailment of the eligibility
to
appointment
in
a
Panchayat
is
concerned, the prohibition has to be clear
and accurate before a person can be
barred from entering into a Panchayat
service.

15. We are also of the opinion that if
the Rule making authorities were minded
to stop a member's brother-in-law's son
from
being
inducted
in
the
same
Panchayat, it would have specifically said
so by prohibiting a brother-in-law's son,
as it has prohibited a nephew's son by
express mention.

16. In these circumstances, the
appeal is allowed. The writ petition is
dismissed and the quashing of the
appellant's appointment and selection is
set aside. The appellant shall function
hereafter in accordance with law.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2005

BEFORE
THE HON'BLE VIKRAM NATH, J.

Civil Misc. Writ Petition No. 12671 of 1990

Smt. Amrawati and others ...Petitioners
Versus
The
XI
Additional
District
Judge,
Moradabad and others ...Respondents

Counsel for the Petitioners:
Sri Rajesh Tandon
Sri Kshitij Shailendra
Sri S.K. Johri

Counsel for the Respondents:
Sri A.N. Tripathi
S.C.

Code of Civil Procedure-Order 50 Rule
1(8), Order 41 rule 27 readwith Small
Causes Courts Act, Section 17 and 25Additional
evidence-although
the
provision of Order 41 rule 27 are not
applicable-Document
sought
to
be
admitted are relevant and necessary to
arrive at a correct and proper decisionheld-revisional court correctly exercised
its jurisdiction by admitting additional
evidence-can not be interfered under
writ jurisdiction.

Held: Para 18

In the present case I have already
considered
and
recorded
that
the
documents sought to be admitted were
relevant and necessary for meeting out
justice between the parties and also for
the Court to arrive at a correct and
proper decision inter se between the
parties, therefore, the revisional court
has correctly exercised its jurisdiction in
admitting the additional evidence.
Case law discussed:
1979 ALJ 1263
1983 ARC-15
2 All] Smt. Amrawati and others V. The XI A.D.J., Moradabad and others
 387
1997 ARC-540
2003 J.T. (11) SC-438
AIR 1968 SCC-271
1992 AWC-273
2001 (9) SCC-245

(Delivered by Hon'ble Vikram Nath, J.)

1. These two writ petitions have
been filed by the defendants for quashing
the order dated 7.2.90 passed by XI
Additional District Judge, Moradabad
(respondent no. 1) In civil revision no. 92
of 1985 and civil revision no. 93 of 1985
whereby the application filed by the
plaintiff revisionist (respondent no. 2) for
admitting the additional evidence has
been allowed and the objections of the
petitioners have been rejected.

2. The dispute relates to the
properties mentioned in schedule 'A' to
the plaint of suit no. 129j of 1984, Smt.
Ramawati vs. Amrawati and others by
which Smt. Ramawati claims herself to be
the owner and land lord and the
petitioners as tenants. The suit was filed
with the allegation that property in dispute
was owned by Sri Jagdish Kumar and
upon his death it was inherited by his
widow Smt. Surendra Bala and his mother
Smt.
Genda
Kunwar.
Earlier
Smt.
Sunrendra Bala had filed a suit against
Smt. Genda Kunawar for her eviction and
for declaration, which was registered as
suit no. 17 of 1944. The said suit was
decided against Smt. Genda Kunwar,
against which she filed a civil revision
before the High Court, which was
registered as civil revision no. 338 of
1945. A compromise was arrived at on
16.12.1947 and on its basis Smt. Genda
Kunwar was given life interest in the
property, detailed in Schedule 'B' to the
plaint in lieu of the maintenance and she
was accordingly, put into possession of
the said property. Upon enforcement of
the Hindu Succession Act, 1956. Smt.
Genda Kunwar executed a Will in respect
of the said property on 23.2.67 in favour
of her grand daughter Smt. Rajeshwari
Devi Tandon became the owner and
continued to remain to be so till her death
on 17.12.80. On that date Smt. Beena
Bahal, only daughter and sole heir of Smt.
Rajeshwari Devi Tandon inherited the
property and she executed the will deed
dated 7.7.83 in favour of the plaintiff Smt.
Ramawati. It was further alleged in the
plaint that the accommodations detailed in
Schedule 'B' and 'C' at the end of the
plaint were part and parcel of the property
shown in Schedule 'A' to the plaint. It
was clarified that the properties of the
Schedule 'B" and 'C" were in tenancy of
Sri Ram Kishore, husband of the
defendant no. 1 Smt. Amrawati and father
of the defendant nos. 2 to 5, namely Sri
Rajendra Kishore, Sri Ravindra Kishore,
Sri Dharmendra Kishore and Sri Arvind
Kishore. On the death of Ram Kishore
defendant nos. 1 to 5 became tenants of
the original owner Smt. Genda, thereafter
of Smt. Rajeshwari Devi Tandon, then of
Smt. Beena Bahal and finally of the
plaintiff Smt. Ramawati. The defendant
had committed default in payment of rent
from 7.7.1983 and therefore a notice
requiring to pay the arrears as also
terminating their tenancy and to vacate
the premises was given on 20.1.1984.
However as the defendant failed to pay
arrears despite notice and had further
denied the title of the plaintiff as land lord
as such the suit was filed on these two
grounds
for
recovery
of
rent
and
ejectment from the properties detailed in
schedule 'B' at the foot of the plaint. In
respect
of
properties
mentioned
in
schedule 'A' and 'C' since they were in
occupation and possession of other parties
388 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
separate suits were filed against them,
being registered as Small Causes Suit No.
130 of 1984 and 131 of 1984.

3. The defendants contested the suit
and filed their written statements alleging,
inter alia, that Smt. Surendra Bala, widow
of Jagdish Kumar, was the owner and
land lord of the properties in dispute. She
had executed a registered will deed in
favour of Sri Vinshu Kumar s/o Lala Tara
Chand on 23.12.1963. The said Will was
also registered on 14.1.1964. Upon the
death of Smt. Surendra Bala, Sri Vishnu
Kumar became the exclusive owner and
land lord of the properties. Subsequently
by a registered sale deed dated 22.4.1983.
Sri Vishnu Kumar transferred his right as
follows: half share in favour of Smt.
Kusum w/o Sri Rajendra Kishore, and
Smt. Jaymata w/o Sri Ravindra Kishore.
The remaining half share was transferred
in favour of Smt. Amrawati, widow of
late Ram Kishore, Sri Dharmendra
Kishore and Sri Arvind Kishor4e, sons of
late Ram Kishore and Smt. Ansuiya w/o
Sri
Dharmendra
Kishore.
In
the
circumstances it was contended by the
defendants in the written statement that
the plaintiff was not the owner and land
lord of the properties in dispute and
therefore could not maintain the suit. It
was also denied in the written statement
that Smt. Genda Kunwar never executed
and Will in favour of the Smt. Rajeshwari
Devi Tandon on 23.2.1967 and therefore,
Smt. Rajeshwari Devi Tandon never
became owner and land lord of the
properties in dispute and subsequently
Smt. Beena Bahal (daughter of Smt.
Rajeshwari Devi Tandon) also had no
right to execute the sale deed in favour of
the plaintiff.

4. Before the trial court both the
parties led the evidence. The plaintiff
filed a copy of the compromise dated
16.12.1947, which was arrived at between
the parties in civil revision no. 338 of
1945. However, neither the pleadings of
suit no. 17 of 1944 nor the order sheet of
civil revision no. 338j of 1945 etc. could
be filed before the trial court even though
the pleading to the same were made in the
plaint. The trial court after hearing the
parties and considering the materials on
records came to the conclusion that Smt.
Genda Kunwar never became the absolute
owner and had no right to execute the
Will and subsequently the rights alleged
to have accrued pursuant to the sale deed
and the subsequent sale deed by Smt.
Beena Bahal could not make the plaintiff
owner and land lord of the properties in
dispute. The trial court was of the view
that it was always Sri Vishnu Kumar on
the basis of will of Smt. Surendra Bala
who became the owner and land lord and
therefore there existed no relationship of
land lord and tenant between the parties.
On these findings of fact the trial court
vide judgment dated 8.2.1985 dismissed
the suit. Aggrieved by the same the
plaintiff filed a revision under section 25
of the Provincial Small Causes Courts
Act, 1887 (hereinafter referred to the Act)
before the District Judge, Moradabad,
which was registered as revision no. 92 of
1985. During pendency of the said
revision the plaintiff filed an application
under section 151 C.P.C. read with Order
XLI Rule 27 C.P.C. for admitting
additional evidence on record for correct
and proper adjudication of the rights of
the
parties.
This
application
was
supported by an affidavit. The five papers
sought to be placed on the record
included.
2 All] Smt. Amrawati and others V. The XI A.D.J., Moradabad and others
 389
1) Plaint of Original Suit No. 17 of
1944, Smt. Surendra Bala vs. Smt.
Genda Kumar
2) Written statement filed in O.S. 17 of
1944 by Smt. Enda Kunwar
3) Judgment of Civil Judge, Moradabad
in Original Suit No. 17 of 1944
4) Order sheet in originals suit no. 234
of 1975 Smt. Rajreswri Devi vs. Sri
Vishnu Kumar
5) Order sheet in original suit no. 234 of
1975 Smt. Rameshwari Devi vs. Sri
Vishnu Kumar.

5. It was explained in the affidavit
that despite best efforts the plaintiff could
not get the copy of these papers during
pendency of the suit as they were not
available in the record room being very
old and that the plaintiff had exercised
due diligence and had made full efforts to
obtain the copy of these documents but
had failed even though these documents
find mention in the plaint. It was stated
that with great difficulty these papers
have been obtained and therefore they
may be taken on record as they would be
necessary for deciding the controversy in
the suit.

6. An objection was filed by the
defendants on 17.1.1989 which was only
formal to the effect that firstly no
additional evidence could be taken in
revision and secondly, that no explanation
has been tendered with regard to non
availability of the record. The revisional
court vide order dated 7.2.1990 has
allowed the application for admitting
evidence holding that they would be
necessary for arriving at a correct decision
in the case. Aggrieved by the said order
the present writ petition has been filed.

7. I have heard Sri Kshitij
Shailendra, learned counsel for the
petitioners and Sri Ashok Nath Tripathi,
learned counsel for the respondents.

8. The sole question which arises for
determination in the petition is as to
whether the additional evidence can be
admitted in a revision under section 25 of
the Act and if such evidence can be
admitted then under what circumstances
its allowance would frustrate the very
purpose of summary disposal of the cases
under the provision of the Act.

9. From a perusal of the record it is
clear that the pleading relating to the
original suit no. 17 of 1944 between Smt.
Surendra Bala and Smt. Genda Kunwar,
filing of Revision No. 338 of 1945 before
the High Court and the compromise
arrived at between the parties in this civil
revision are not disputed. Plaint clearly
mentioned these facts. It is also clear from
the pleading that both the parties are
claiming title through the heirs of Sri
Jagdish Kumar. The two heirs who
succeeded Sri Jagdish Kumar were his
mother Smt. Genda Kunwar and his
widow Smt. Surendra Bala. Plaintiff Smt.
Ramawati claims her title coming down
from Smt. Genda Kunwar whereas
defendants Smt. Amrawati and her son
claim title coming down from Smt.
Surendra Bala. In the suit for declaration
between smt. Surendra Bala and Smt.
Genda
Kunwar,
their
rights
stood
determined under the compromise dated
16.12.1947. It is not in dispute that the
full compromise is not available and has
been destroyed. In the circumstances the
pleading of the suit no. 17 of 1944 i.e.
plaint and written statement thereof would
be relevant to consider the circumstances
under which the compromise was arrived
390 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
at and also to some extent the nature of
the compromise which was arrived at
between the two ladies.

10. In my considered view the
pleading of the original suit no. 17 of
1944 would be relevant as also necessary
for arriving at a correct and proper
conclusion with regard to the rights of the
parties in the present proceeding.

11. Learned counsel for the
petitioners
has
contended
that
applicability order XLI Rule 27j of the
C.P.C. is specifically barred in view of the
second order 50 of C.P.C. and section 17
of the Act. These two provision provide
the details of the provision of the C.P.C.
which can be applied in proceeding under
1887 Act, in Order L of the C.P.C., Order
XLI Rule 27 has not been included rather
Order XLI to Order XLV have been
specifically excluded from being extended
to the courts constituted under the Act.

12. The contention of Sri Kshityij
Shailendra, learned counsel for the
petitioner, therefore, is that even if these
papers sought to be filed were necessary
and proper for correct adjudication of the
rights, since Order XLI Rule 27, CPC has
been excluded from being applied to the
proceedings
under
the
Act,
these
documents could not have been admitted
in revision. In support of his contention
reliance has been placed on the following
judgment:

1) 1979 All L.J. Smt. Kamini Khare vs.
Ram Naresh Pandey and another
2) 1983 ARC Page 15, Babu Ram vs.
The
Additional
District Judge,
Dehradun and another
3) 1997
ARC
page
540,
Kailash
Chandra Jain vs. Jagdish Chandra
Nagpal and another
4) 2003 JT (II) SC 438, State of
Andhra
Pradesh
vs.
P.V.
Hanumanta Rao (dead).

13. On the other hand, Sri Ashok
Nath Tripathi, learned counsel for the
respondents has contended that in order to
meet the ends of justice and for arriving at
correct decision, if the Court comes to the
conclusion that certain papers need to be
admitted it can always exercise power
under its inherent jurisdiction available
under section 151 C.P.C. In the present
case the court below having recorded the
findings that admitting of the evidence
would help in correct and proper
adjudication of the rights, it was fully
justified in passing the order admitting the
evidence and such order cannot be termed
to be suffering from any error of law
warranting interference by this Court in
its extraordinary jurisdiction.

14. Sri Tripathi has also relied upon
the following judgements in support of his
contention:

1)
AIR 1968 SCC 271 The Pabbojan
Tea Co. Ltd. etc. vs. The Deputy
Commissioner, Lakhimpur and others
2)
1992 AWC 273 Smt. Gayatri Devi
and others vs. Additional District
Judge/Special Judge (EC ACT) Etawah
and another
3)
(2001) 9 Supreme Court Cases 245
Badami Devi (Smt.) and another vs.
Ambuja Raghav and another.

15. All the judgment relied upon by
both sides ultimately rest upon the law
laid down by the Division Bench of this
Court in the case of Babu Ram (supra).
2 All] Smt. Amrawati and others V. The XI A.D.J., Moradabad and others
 391
In the said cases this Court, after holding
that even though an order under Order
XLI Rule 27 C.P.C. cannot be pressed
into service for admitting the additional
evidence in revision under section 25 of
the Act, but at the same time the Division
Bench held that the court is constituted
for the purpose of doing justice according
to law and must therefore be deemed to
possess as a necessary corollary and as
inherent in its very constitution such
powers as may be necessary to do justice
and undo wrong in the course of the
administration of the justice. The Division
Bench further goes on to say that inherent
power of a court to do justice in fact flows
from the well recognized principle of
equity justice and good conscious which
equally applies to Courts deciding a suit
under the Small Cause Court Act. The
Division Bench while considering the
provision contained in order 50 Rule 1(B)
held as follows:

"After a review of the various
provision of the Provincial Small Cause
Courts Act and the Code of Civil
Procedure, we find that there is no
prohibition contained in either of the two
enactments
expressed
or
impliedly
providing for the bar of admitting
additional evidence. What Order 1, Rule
1(b) did by excluding order XLI was only
that this provision will not apply to
revisions. But, the fact that order XLI
Rule 27 has been excluded does not lead
to the conclusion that the Court cannot in
exercise of its inherent power admit
additional evidence when the ends of the
justice requires the same to be done.

Thus, there is no doubt that the Court
of Small Cause can in exercise of its
inherent power admit additional evidence.
However, when that power could be
exercised and in what manner, that is a
different question and that should not be
mixed up with the jurisdiction of the court
to admit additional evidence."

16. In view of the above clear and
unambiguous law laid down by Division
Bench of this Court in the case of Babu
Ram (Supra), which has also been
followed and concurred with in the
subsequent judgment in the case of
Gayatri Devi (Supra) there cannot be any
doubt that the revisional court exercising
power under section 25 of the Act can
admit additional evidence.

17. In the case of Mohair (supra),
relied upon by the petitioners also this
Court has said down that there can be a
situation where the revisional court
exercising power under section 25 of the
Act may admit the additional evidence.
Further in the case of Kailash Chandra
Jain (supra) also the court has held that
in the revisional jurisdiction under section
25 of the Act the power to admit
additional evidence is inherent and that
jurisdiction is always available. The case
of State of Andhra Pradesh vs. P.V.
Hanumanta Rao (supra) also is of no
help to the petitioner as it relates to
exercise of jurisdiction or appreciation of
the evidence by the High Court under
Article 226 and 227 of the Constitution of
India.

18. In the present case I have
already considered and recorded that the
documents sought to be admitted were
relevant and necessary for meeting out
justice between the parties and also for
the Court to arrive at a correct and proper
decision inter se between the parties,
therefore,
the
revisional
court
has
correctly exercised its jurisdiction in
admitting the additional evidence.
392 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
19. In view of what has been
discussed above the revisional court has
not committed any error much less error
of law so as to warrant interference by
this Court under its equitable and
extraordinary jurisdiction under Article
226 of the Constitution of India.

20. Accordingly, both the writ
petitions fail and are dismissed. However,
there shall be no order as to costs.
Petition Dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.5.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No. 587 of 2005

Narendra Kumar and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri M.D. Singh Shekhar

Counsel for the Respondents:
Sri Kapil Rathore
S.C.

Constitution of India, Article 226-Service
Law-Ad-hoc
appointment-Appellants/
Petitioner ungone the regular selection
process-but the authority instead of
giving appointment on probation basis
for one year appointed adhoc basis-the
appellant, joined without any protestcan not have legitimate expiation, for
permanent job-held petitioner rightly
dismissed.

(Delivered by Hon'ble Ajoy Nath Ray, C.J.)

1. The appeal is taken up and
summarily disposed of. The appellant-
writ petitioners were issued letters of
adhoc appointment but they filed the writ
for the purpose of continuing to work.
The term of appointment on the adhoc
basis ran out on 17th February, 2004,
when they were stopped from discharging
their duty, they came to Court.

2. We are in respectful agreement
with the order passed by Hon'ble Mr.
Justice Tarun Agarwal dated `12th April,
2004 whereby his Lordship has held that
the writ petitioners were not entitled to
any relief and they had no right to hold
their respective posts.

3. We assume for the purposes of
this appeal, though the Hon'ble Judge has
held otherwise in the court below that the
posts were in the nature of substantive
permanent vacancies. However, it is the
admitted
position
that
though
the
selection committee after advertisement
had recommended appointments with a
probationary
period,
the
appointing
authority
chose
quite
a
different
procedure and issued adhoc letters of
appointments to all the writ petitioners.

4. On behalf of the appellants, it has
been contended that on the facts of this
case, the appointments granted must be
treated by the court as permanent
appointments to substantive posts, mere
running out of the period of ad hoc
appointment would not entitle the Court
to allow the writ petitioners ' services to
be terminated summarily.

5. On the part of the respondents, the
impugned judgment was supported on the