Judgment · High Court · 2012

An objection was filed by the opposite party/plaintiff to the said appli cation. After hearing the learned counsel for the parties and on consideration o f materials on record, the learned Trial Court by the impugned order dated 03-0 1-2012, rejected the said application. This present application under Article 227 of the Constitution of India is directed against the aforesaid order dated 03-01-2012. Mr. P.K. Talukdar, learned counsel for the petitioner, at the very outse t, submits that though in the application under Order 41 Rule 27 read with Secti on 151 CPC, the petitioner had urged for framing of two issues, he is not going to argue in respect of framing of issue relating to (cid:28) due date for payment of re nt (cid:29) and will confine his argument relating to framing of an issue on the quantu m of rent of the tenanted of the premises. The learned counsel submits that in o rder to pass a decree for ejectment of a tenant on the ground of default, it is essential to determine the rent payable by the tenant.

In the instant case, the learned counsel submits, no issues were framed regarding the rent payable by t he petitioner to the land lord and, therefore, it is essential to frame an issue on that score and to allow the parties to lead evidence. The learned counsel su bmits that the learned Trial Court did not consider the petition filed by the pe titioner in its correct perspective and committed material irregularity in reje cting the said application, warranting interference of this Court. Mr. S.P.Roy, learned counsel for the opposite party, on the other hand, submits that there was no pleading in the written statement filed by the petitio ner relating to rent payable. The learned counsel submits that in absence of a s pecific plea in the pleadings, the petitioner is not entitled to lead any evide nce. It is also submitted by him that on the basis of materials on record, the l earned Trial Court held the petitioner to be defaulter of payment of rent.

It is also argued by him that the application filed by the petitioner does not satis fy the requirement of Order 41 Rule 27 read with Section 151 CPC and, therefore, the learned Trial Court had rightly rejected the said application. I have heard the learned counsel for the parties and also considered the materials on record. A perusal of the pleadings in the written statement shows that th e petitioner has not pleaded that the rent was Rs. 800/- p.m as contended now by Mr. P.K. Talukdar before this Court. A perusal of the affidavit-in-opposition filed by the opposite party before this Court also shows that the present petit ioner along with some other tenants of the opposite party had filed a Title Suit being Title Suit No. 270 of 2003 against the opposite party herein and in the s aid suit also, there is no averment relating to rent being fixed initially at Rs .600/- and later on enhanced to Rs.

800/- Order 41 Rule 27 reads as follows :- (cid:28) 27. Production of additional evidence in Appellate Court- (1) The part ies to an appeal shall not be entitled to produce additional evidence, whether o ral 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 notwithst anding the exercise of due diligence, such evidence was not withing his knowledg e 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 (b) to be examined to enable it to pronounce judgement, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court , the Court shall record the reason for its admission (cid:29) A perusal of the said provision will go to show that the petition filed by the defendant No.1 does not fulfil the requirement of Order 41 rule 27 CPC t o enable the learned Trial Court to allow such evidence. There was no pleadings in the first place and, therefore, permitting the defendant No.1 to lead evidenc e cannot arise. That apart, in order to get a decree for ejectment on the ground of default, the plaintiff has to establish rent payable along with due date of payment. In view of the above, this Court does not find any merit in this applica tion and accordingly, the same is dismissed.