Mohd. Ismail Tailor Master v. Akhtar Hussain Babu)

1. Heard Ms. Sufia Saba and Mr. Abdul Majeed, learned counsel for the applicant and Mr. Anwar Hussain, learned counsel for the petitioner.

2. The instant application has been filed with the prayer to implead the applicant Mohd. Irfan as respondent no.2 in view of the execution of sale deed by respondent no.1. The copy of the sale deed dated 21.10.2020 is annexed along with the supplementary affidavit dated 24.8.2025 as Annexure No. SA-1.

3. Considering the facts and circumstances, the instant application is allowed.

4. Office is directed to implead Mohd. Irfan as respondent no.2 in the instant petition. Order on Petition

1. Heard Mr. Anwar Hussain, learned counsel for the petitioner and Ms. Sufia Saba and Mr. Abdul Majeed, learned counsel for respondent no.2.

2. Brief facts of the case are that S.C.C suit No. 10 of 2008 filed by plaintiff/ respondent no.1/ Akhtar Hussain for arrears of rent and ejectment impleading the petitioner/ Mohd. Ismail Tailor Mastor as defendant/ tenant of the shop in question. The issues were framed in the aforementioned suit and the parties have adduced the evidence in support of their case. Judge Small Cause Moradabad vide judgement dated 10.9.2012 decreed the suit and ordered for eviction of the petitioner/ tenant from the shop in question as well as for payment of due rent to the landlord. Against the judgement and decree dated 10.9.2012 passed by Judge Small Cause Moradabad, revision under Section 25 of Provincial Small Cause Courts Act was filed by petitioner/ tenant before District 2 A227 No. 1733 of 2023 Judge which was registered as SCC revision No. 32 of 2012. During pendency of the aforementioned revision, after about seven years from the filing of the revision, an application under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code was filed with the prayer that original receipts and tender be taken as additional evidence and defendant/ tenant be permitted to lead evidence in respect to the aforementioned document in the revision. The application was numbered as paper No. 49-Ga. Against the aforementioned application, objection was filed on behalf of respondent no.1/ landlord stating that application should be rejected as the trial was conducted before the Judge Small Cause, proper issues were framed and the decree for arrears of rent and eviction was passed against the petitioner/ tenant, as such, the application for additional evidence after seven years from the filing of the revision cannot be entertained and allowed. Additional District Judge Court No. 7 Moradabad vide order dated 11.11.2022 rejected the application 49-Ga and fixed the revision for argument of the parties. Hence this petition under Article 227 of the Constitution of India on behalf of petitioner/ tenant for the following relief:- "To call for the records of the case from the Court below and set aside the impugned order dated 11.11.2022 passed by Additional District Judge, Court No.7, Moradabad in SCC Revision No. 32 of 2012 (Mohd. Ismail Tailor Master Vs. Akhtar Hussain @ Babu)."

3. This Court entertained the matter on 24.2.2023 and stayed the further proceeding of SCC Revision No. 32 of 2012.

4. In pursuance of the order of this Court dated 24.2.2023, counter affidavit has been filed on behalf of the respondent no.1.

5. Counsel for the petitioner submitted that application under Order 41 Rule 27 of the C.P.C. has been illegally rejected without considering the averment made in the written statement. He further submitted that necessary pleading was made in the written statement but the copy of the rent receipt and tender etc. could not be filed before the Judge Small Cause. He submitted that during pendency of revision, the same has been filed along with the application to accept the same as additional evidence but the revisional Court has illegally rejected the application for additional evidence. He further placed the averment of plaintiff/ respondent in order to demonstrate that there was pleading regarding the deposit of rent by the tenant and the statement was also recorded to that effect before Judge Small Cause, as such, the application under Order 41 Rule 27 C.P.C. was rightly filed before the revisional Court. He submitted that the impugned order should be set aside and application under Order 41 Rule 27 C.P.C. should be allowed. He placed reliance upon the judgment of Hon'ble Apex Court passed in Civil Appeal No. 10458 of 2010 Iqbal Ahmad and another Vs. Abdul Shukoor dated 22.8.2025 as well as judgement of this Court reported in 1990 (16) ALR 817 Uma 3 A227 No. 1733 of 2023 Shankar Pathak Vs. Additional District Judge Kanpur and Others. He submitted that in view of the ratio of law laid down by Hon'ble Apex Court and this Court, the impugned impugned cannot be sustained in the eye of law.

6. On the other hand, learned counsel for respondent no.2 submitted that filing of application under Order 41 Rule 27 C.P.C. in revision after seven years from the date of filing of the revision is total abuse of process of law. He submitted that SCC suit was filed in the year 2008. She submitted that issues were framed, trial was conducted and judgement was passed in the year 2012. She further submitted that issues regarding arrears of rent was framed and decided by the Judge Small Cause, as such, the application for additional evidence filed by tenant in revision is only to linger on the proceeding in the Court. She submitted that revision filed in the year 2012 is still pending before the revisional Court and tenant is enjoying the possession of the shop in question. She submitted that no interference is required and the petition is liable to be dismissed.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that SCC suit filed by respondent no.1/ landlord was decreed by the Judge Small Cause vide judgement and decree dated 10.9.2012 and the revision under Section 25 of Provincial Small Cause Courts Act filed by petitioner/ tenant is still pending before the revisional Court.

9. In order to appreciate the controversy involved in the matter, the perusal of the relevant portion of the order impugned passed by the revisional Court while rejecting the application under Order 41 Rule 27 C.P.C. will be relevant which is as under:- "उ्व िनणर्यज िविध के अवलोकन से यह स्प्ि है िक िनगरानी के स्तर पर दस्तावेजी साष्य िदया जा सकता है, परन्तु इसके बावजूद भी िनगरानीकतार् को यह सािबत करना होगा िक उसे वह दस्तावेज िवचारण के समय नहीं िमल सकते थे और सम्यक तत्परता के बावजूद भी वह ऐसे साष्य की जानकारी नहीं रखता था या उस समय पेश नहीं कर सकता था। ्ऺाथर्ना प्ऴ के माध्यम से िनगरानीकतार् रसीदें इत्यािद दािखल करना चाहता है। सम्बंिधत रसीदों के अवलोकन से िविदत होता है िक यह रसीदें िवचारण न्यायालय में वाद ्ऺस्तुत करने से पूवर् की एवं उसके बाद की हैं और उ्व रसीदों की जानकारी होना िनगरानीकतार् पूवर् से ही थी और उसे उ्व रसीदों को िवचारण न्यायालय के सम्ष ्ऺस्तुत करने का पूणर् अवसर था, परन्तु िवचारण न्यायालय के सम्ष उ्व रसीदे ्ऺस्तुत नहीं की गयीं। िनगरानीकतार् ्षास रसीदै ्ऺस्तुत न करने का आधार मा्ऴ यह िदया गया है िक वह बहुत-सी बाते भूल जाता है और उसके अिधव्वा ने प्ऴावली par रसीदे ्ऺस्तुत करने हेतु नहीं कहा। उ्व आधार िनगरानी के स्तर पर रसीदें दािखल करने हेतु पयार्प्त नहीं है, जब तक िनगरानीकतार् यह स्प्ि नहीं कर देता है िक वह सम्यक तत्परता के बावजूद भी उ्व रसीदें िवचारण न्यायालय के सम्ष दािखल नहीं कर सका है तब तक ऐसी रसीदें िनगरानी के स्तर पर दािखल िकये जाने का आधार पयार्प्त नहीं माना जा सकता। प्ऴावली के अवलोकन से यह िविदत भी होता है िक िनगरानीकतार् ्षारा पूवर् में एक ्ऺाथर्ना प्ऴ कागजात दािखल करने हेतु कागज संख्या 23 ग ्ऺस्तुत िकया गया था, वह ्ऺाथर्ना प्ऴ भी 4 A227 No. 1733 of 2023 िदनाक 09.09.2016 को िनरस्त िकया जा चुका है। उपरो्व तथ्यों को दृि्िगत रखते हुए मेरी राय में ्ऺाथर्ना प्ऴ 49 ग आधारहीन है और खािरज िकये जाने योग्य है। आदेश ्ऺाथर्ना प्ऴ 49 ग खािरज िकया जाता है। आपि्त तद्नुसार िनस्तािरत की जाती है। प्ऴावली वास्ते बहस िदनांक 28.11.2022 को पेश हो। िदनांक-11.11.2022 अपर िजला जज 11/11.2022"

10. It is material to mention that suit was filed in the year 2008 and trial was conducted for about four years, the issues were framed as well as parties adduced evidences in support of their case, as such, the filing of rent receipt etc. at the revisional stage cannot be allowed by the Court exercising the jurisdiction under Section 25 of Provincial Small Cause Court Act.

11. The explanation given for non-filing of the aforementioned receipt and tender etc. in the suit cannot be accepted. The Court has rightly rejected the application under Order 41 Rule 27 C.P.C. filed by petitioner.

12. Considering the entire facts and circumstances of the case, no interference is required against the order impugned passed by Additional District Judge rejecting the application under Order 41 Rule 27 C.P.C.

13. The petition is dismissed and the revisional Court is directed to decide the pending SCC revision No. 32 of 2012 expeditiously preferably within period of three months from the date of production of certified copy of this order after affording opportunity of hearing to the parties. September 4, 2025 Vandana Y. (Chandra Kumar Rai,J.) VANDANA YADAV High Court of Judicature at Allahabad

1. Heard Ms. Sufia Saba and Mr. Abdul Majeed, learned counsel for the applicant and Mr. Anwar Hussain, learned counsel for the petitioner.

2. The instant application has been filed with the prayer to implead the applicant Mohd. Irfan as respondent no.2 in view of the execution of sale deed by respondent no.1. The copy of the sale deed dated 21.10.2020 is annexed along with the supplementary affidavit dated 24.8.2025 as Annexure No. SA-1.

3. Considering the facts and circumstances, the instant application is allowed.

4. Office is directed to implead Mohd. Irfan as respondent no.2 in the instant petition. Order on Petition

1. Heard Mr. Anwar Hussain, learned counsel for the petitioner and Ms. Sufia Saba and Mr. Abdul Majeed, learned counsel for respondent no.2.

2. Brief facts of the case are that S.C.C suit No. 10 of 2008 filed by plaintiff/ respondent no.1/ Akhtar Hussain for arrears of rent and ejectment impleading the petitioner/ Mohd. Ismail Tailor Mastor as defendant/ tenant of the shop in question. The issues were framed in the aforementioned suit and the parties have adduced the evidence in support of their case. Judge Small Cause Moradabad vide judgement dated 10.9.2012 decreed the suit and ordered for eviction of the petitioner/ tenant from the shop in question as well as for payment of due rent to the landlord. Against the judgement and decree dated 10.9.2012 passed by Judge Small Cause Moradabad, revision under Section 25 of Provincial Small Cause Courts Act was filed by petitioner/ tenant before District 2 A227 No. 1733 of 2023 Judge which was registered as SCC revision No. 32 of 2012. During pendency of the aforementioned revision, after about seven years from the filing of the revision, an application under Order 41 Rule 27 read with Section 151 of the Civil Procedure Code was filed with the prayer that original receipts and tender be taken as additional evidence and defendant/ tenant be permitted to lead evidence in respect to the aforementioned document in the revision. The application was numbered as paper No. 49-Ga. Against the aforementioned application, objection was filed on behalf of respondent no.1/ landlord stating that application should be rejected as the trial was conducted before the Judge Small Cause, proper issues were framed and the decree for arrears of rent and eviction was passed against the petitioner/ tenant, as such, the application for additional evidence after seven years from the filing of the revision cannot be entertained and allowed. Additional District Judge Court No. 7 Moradabad vide order dated 11.11.2022 rejected the application 49-Ga and fixed the revision for argument of the parties. Hence this petition under Article 227 of the Constitution of India on behalf of petitioner/ tenant for the following relief:- "To call for the records of the case from the Court below and set aside the impugned order dated 11.11.2022 passed by Additional District Judge, Court No.7, Moradabad in SCC Revision No. 32 of 2012 (Mohd. Ismail Tailor Master Vs. Akhtar Hussain @ Babu)."

3. This Court entertained the matter on 24.2.2023 and stayed the further proceeding of SCC Revision No. 32 of 2012.

4. In pursuance of the order of this Court dated 24.2.2023, counter affidavit has been filed on behalf of the respondent no.1.

5. Counsel for the petitioner submitted that application under Order 41 Rule 27 of the C.P.C. has been illegally rejected without considering the averment made in the written statement. He further submitted that necessary pleading was made in the written statement but the copy of the rent receipt and tender etc. could not be filed before the Judge Small Cause. He submitted that during pendency of revision, the same has been filed along with the application to accept the same as additional evidence but the revisional Court has illegally rejected the application for additional evidence. He further placed the averment of plaintiff/ respondent in order to demonstrate that there was pleading regarding the deposit of rent by the tenant and the statement was also recorded to that effect before Judge Small Cause, as such, the application under Order 41 Rule 27 C.P.C. was rightly filed before the revisional Court. He submitted that the impugned order should be set aside and application under Order 41 Rule 27 C.P.C. should be allowed. He placed reliance upon the judgment of Hon'ble Apex Court passed in Civil Appeal No. 10458 of 2010 Iqbal Ahmad and another Vs. Abdul Shukoor dated 22.8.2025 as well as judgement of this Court reported in 1990 (16) ALR 817 Uma 3 A227 No. 1733 of 2023 Shankar Pathak Vs. Additional District Judge Kanpur and Others. He submitted that in view of the ratio of law laid down by Hon'ble Apex Court and this Court, the impugned impugned cannot be sustained in the eye of law.

6. On the other hand, learned counsel for respondent no.2 submitted that filing of application under Order 41 Rule 27 C.P.C. in revision after seven years from the date of filing of the revision is total abuse of process of law. He submitted that SCC suit was filed in the year 2008. She submitted that issues were framed, trial was conducted and judgement was passed in the year 2012. She further submitted that issues regarding arrears of rent was framed and decided by the Judge Small Cause, as such, the application for additional evidence filed by tenant in revision is only to linger on the proceeding in the Court. She submitted that revision filed in the year 2012 is still pending before the revisional Court and tenant is enjoying the possession of the shop in question. She submitted that no interference is required and the petition is liable to be dismissed.

7. I have considered the arguments advanced by learned counsel for the parties and perused the records.

8. There is no dispute about the fact that SCC suit filed by respondent no.1/ landlord was decreed by the Judge Small Cause vide judgement and decree dated 10.9.2012 and the revision under Section 25 of Provincial Small Cause Courts Act filed by petitioner/ tenant is still pending before the revisional Court.

9. In order to appreciate the controversy involved in the matter, the perusal of the relevant portion of the order impugned passed by the revisional Court while rejecting the application under Order 41 Rule 27 C.P.C. will be relevant which is as under:- "उ्व िनणर्यज िविध के अवलोकन से यह स्प्ि है िक िनगरानी के स्तर पर दस्तावेजी साष्य िदया जा सकता है, परन्तु इसके बावजूद भी िनगरानीकतार् को यह सािबत करना होगा िक उसे वह दस्तावेज िवचारण के समय नहीं िमल सकते थे और सम्यक तत्परता के बावजूद भी वह ऐसे साष्य की जानकारी नहीं रखता था या उस समय पेश नहीं कर सकता था। ्ऺाथर्ना प्ऴ के माध्यम से िनगरानीकतार् रसीदें इत्यािद दािखल करना चाहता है। सम्बंिधत रसीदों के अवलोकन से िविदत होता है िक यह रसीदें िवचारण न्यायालय में वाद ्ऺस्तुत करने से पूवर् की एवं उसके बाद की हैं और उ्व रसीदों की जानकारी होना िनगरानीकतार् पूवर् से ही थी और उसे उ्व रसीदों को िवचारण न्यायालय के सम्ष ्ऺस्तुत करने का पूणर् अवसर था, परन्तु िवचारण न्यायालय के सम्ष उ्व रसीदे ्ऺस्तुत नहीं की गयीं। िनगरानीकतार् ्षास रसीदै ्ऺस्तुत न करने का आधार मा्ऴ यह िदया गया है िक वह बहुत-सी बाते भूल जाता है और उसके अिधव्वा ने प्ऴावली par रसीदे ्ऺस्तुत करने हेतु नहीं कहा। उ्व आधार िनगरानी के स्तर पर रसीदें दािखल करने हेतु पयार्प्त नहीं है, जब तक िनगरानीकतार् यह स्प्ि नहीं कर देता है िक वह सम्यक तत्परता के बावजूद भी उ्व रसीदें िवचारण न्यायालय के सम्ष दािखल नहीं कर सका है तब तक ऐसी रसीदें िनगरानी के स्तर पर दािखल िकये जाने का आधार पयार्प्त नहीं माना जा सकता। प्ऴावली के अवलोकन से यह िविदत भी होता है िक िनगरानीकतार् ्षारा पूवर् में एक ्ऺाथर्ना प्ऴ कागजात दािखल करने हेतु कागज संख्या 23 ग ्ऺस्तुत िकया गया था, वह ्ऺाथर्ना प्ऴ भी 4 A227 No. 1733 of 2023 िदनाक 09.09.2016 को िनरस्त िकया जा चुका है। उपरो्व तथ्यों को दृि्िगत रखते हुए मेरी राय में ्ऺाथर्ना प्ऴ 49 ग आधारहीन है और खािरज िकये जाने योग्य है। आदेश ्ऺाथर्ना प्ऴ 49 ग खािरज िकया जाता है। आपि्त तद्नुसार िनस्तािरत की जाती है। प्ऴावली वास्ते बहस िदनांक 28.11.2022 को पेश हो। िदनांक-11.11.2022 अपर िजला जज 11/11.2022"

10. It is material to mention that suit was filed in the year 2008 and trial was conducted for about four years, the issues were framed as well as parties adduced evidences in support of their case, as such, the filing of rent receipt etc. at the revisional stage cannot be allowed by the Court exercising the jurisdiction under Section 25 of Provincial Small Cause Court Act.

11. The explanation given for non-filing of the aforementioned receipt and tender etc. in the suit cannot be accepted. The Court has rightly rejected the application under Order 41 Rule 27 C.P.C. filed by petitioner.

12. Considering the entire facts and circumstances of the case, no interference is required against the order impugned passed by Additional District Judge rejecting the application under Order 41 Rule 27 C.P.C.

13. The petition is dismissed and the revisional Court is directed to decide the pending SCC revision No. 32 of 2012 expeditiously preferably within period of three months from the date of production of certified copy of this order after affording opportunity of hearing to the parties. September 4, 2025 Vandana Y. (Chandra Kumar Rai,J.) VANDANA YADAV High Court of Judicature at Allahabad