Hari Kant Pathak vs Chandra Kanta (DEAD) and others

V.K. Shukla, J.

This is tenant''s writ petition, questioning the validity of order dated 30.07.2008 passed by Additional District Judge, Court No.5, Agra, allowing application moved on behalf of landlord for accepting additional evidence.

Brief background of the case is that before Judge Small Causes Court JSCC suit No. 68 of 1998 was filed for ejectment and arrears of rent. In the said proceedings so undertaken, Judge Small Cause Court on 30.05.2002 passed order, refusing the relief of ejectment of petitioner from disputed shop. Aggrieved against the said order landlord filed JSCC revision No.14 of 2002. On 08.05.2007 an application was moved for bringing on record the documents to determine the date of construction of property. It was mentioned therein that if the documents filed therein are not admitted on record, rights of revisionist would be seriously prejudiced. The said application, which was filed under Order 41 Rule 27 of the Code of Civil Procedure, against the same objection had been filed, and thereafter said application has been allowed on 30.07.2008. At this juncture present writ petition has been filed.

Sri R.C. Singh, learned counsel for the petitioner, contended with vehemence that in the present case no reasons have been assigned by the Additional District Judge as to why the application in question was being accepted.

After the arguments being advanced, impugned order dated 30.07.2008 has been perused. Order in question reflects that application in question had been moved for accepting the documents filed along with the application under Order 41 Rule 27 C.P.C., as in the opinion of Revisionist, same would help the court in deciding the matter, and at the time when the matter was decided said documents were not available. Concerned court has proceeded to note down the respective arguments advanced by the parties and thereafter has proceeded to mention that on the basis of case laws produced in Revisional Court, additional evidence can be produced. The judgment which has been produced on behalf of the tenant, same does not give correct proposition of law, as such application 153C was accepted and the list of documents mentioned therein were accepted in evidence. The judgment which has been cited for and which has been relied upon by the concerned court merely gives right to accept the additional evidence on record, but it does not ipso facto mean that once right is there, then revisional court has to accept the additional evidence, and same can be accepted as a matter of course. In the present case concerned court has not given reason as to why said application was being accepted, whereas, as per provisions contained under Order 41 Rule 27 C.P.C. in case additional evidence was to be accepted on record, then party seeking production of additional evidence was obliged to substantiate that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence by him at the time when decree appealed against was passed, and the court concerned requires such document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, and whenever additional evidence is allowed to be produced, court will have to give reasons. In the present case reasons are completely lacking and missing.

Consequently, writ petition is allowed. The order dated 30.07.2008 is hereby quashed and set aside. Additional District Judge, Court No.5, Agra, is directed to see that application 153C for taking additional evidence on record is decided afresh by means of reasoned and speaking order , keeping in inview parameters provided for under Order 41 Rule 27 C.P.C.

In the present case, the order has been passed exparte, as on the face of it, without assigning any reason additional evidence has been taken on record, and in case further proceedings are stayed by this Court, hearing of the appeal would have been deferred for all times to come and same would prejudice the right of landlord. It is made clear that in case landlord has any grievance against the order passed by this Court, then it is always open to him to approach this Court to point out the prejudice caused to him.

Hon''ble Rajiv Sharma, J. :

Heard learned counsel for the petitioner and learned Standing Counsel for respondents no. 1 to 3.

With the consent of the learned counsel for the parties, this writ petition is finally disposed of at the admission stage.

By means of the instant writ petition, the petitioner is assailing the order dated 23.8.2007 passed by the respondent no.2 as contained in annexure 1 to the writ petition and further prays for a direction to the respondent no.3 to reconsider the application for grant of arms license of Rifle in favour of the petitioner in accordance with law.

It has been stated that the petitioner had applied arms licence of rifle before the respondent no.2 and as the same has not been disposed of by the respondent no.2, the petitioner has preferred a writ petition, which was numbered as writ petition no.3266 (MS) of 2007, before this Court and this Court, vide order dated 10.7.2007, directed the District Magistrate, Barabanki to decide the representation of the petitioner for grant of licence in respect of 315 Bore Rifle by a speaking and a reasoned order within a period of four weeks'' from the date of receipt of the certified copy of the order. In compliance thereof, vider oder dated 23.8.2007, the respondent no.2 considered the application of the petitioner and rejected the same on the ground that the petitioner is in possession of one arms license. Being aggrieved thereof, the petitioner has preferred the instant writ petition.

Learned counsel for the petitioner further submits that there is no bar under Section 3 (2) of the Arms Act that any person cannot acquire more than one fire arms.

Section 3 (2) of the Arms Act provides that

"Notwithstanding anything contained in subsection (1), no person, other than a person referred to in subsection (3), shall acquire, have in his possession or carry, at any time, more than three fire arms:

Provided that a person who has in his possession more firearms than three at the commencement of the Arms (Amendment) Act, 1983, may retain with him any three of such firearms and shall deposit, within ninety days from such commencement, the remaining firearms with the officer in charge of the nearest police station or, subject to the conditions prescribed for the purposes of subsection (1) of section 21, with a licensed dealer or, where such person is a member of the armed forces of the Union, in a unit armoury referred to in that subsection."

At this stage, learned counsel for the petitioner restricts his prayer only to the extent that he may be permitted to make a fresh application to the authority concerned and the authority concerned be directed to consider and decide the same, expeditiously, to which learned Standing Counsel has no objection.

In view of the above, without entering into the merit of the case, it is provided that in case the petitioner prefers a fresh representation within a period of fifteen days from today, the respondent no. 2 is directed to consider and decide the same, expeditiously, say, within a period of three months from the date of receipt of the representation along with the certified copy of this order in accordance with law.

With these observations, the writ petition is finally disposed of.