1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.874 OF 1994 with CIVIL APPLICATION NO.11536 OF 1998 Wasudeo Hari Patwardhan ...Petitioner vs. Smt.Tarabai Umeshchandra Joshi ...Respondents Mr.K.S.Vakil for the petitioner Mr.D.D.Mehta, C.S.Balsara and H.N.Vakil i/b M/s.Mulla & Mulla for respondent no.3 None for the other respondents CORAM :A.S.OKA,J. DATE : APRIL 5, 2010 JUDGMENT: 1 Heard the learned counsel for the petitioner. It is stated that the first respondent is no more but her legal representatives are already on record in another capacity. I have also heard the learned counsel for 3 rd respondent. Office noting shows that the rest of the respondents are duly served with the notice of this petition. 2 The petitioner is the original defendant-tenant and the respondents are the legal representatives of the original plaintiff-landlord. A suit was filed by the original plaintiff for possession of the suit premises. The suit was dismissed by the trial Court. An appeal was preferred by the legal representatives of the original plaintiff. By the impugned Judgment and decree, the Appeal Bench of Court of Small Causes has reversed the decree of the trial Court and has passed a decree for possession on the ground of bonafide requirement. 2 3 Detailed submissions were made by the learned counsel for the petitioner. He has invited my attention to the interim notice no.4356 of 1993 taken out by the petitioner. By the said interim notice, a prayer was made by the petitioner for issuing witness summons to the witnesses and for other reliefs. In short, the prayer in the said application was for permitting the petitioner to lead additional evidence of subsequent events which are pleaded in the said application. The learned counsel for the petitioner has also invited attention of the Court to the interim notice no.4549 of 1993 taken out by the legal representatives of the original plaintiff by which a prayer was made for taking into consideration the alleged change in circumstances pleaded in the said interim notice. Inviting my attention to the operative part of the impugned Judgment and Decree, he pointed out that that the Appeal Bench has purported to allow the notice taken out by the petitioner without giving an opportunity to the petitioner to adduce evidence as prayed in the said notice. The notice taken out by the petitioner seeking permission to adduce additional evidence. His other grievance was that the facts which were incorporated in the interim notice no.4549 of 1993 taken out by the legal representatives of the original plaintiff have been accepted as a gospel truth though no evidence was adduced by the legal representatives of the original plaintiff of the facts stated in the said notice. 4 Faced with these submissions, the learned counsel for the 3 rd respondent on instructions stated that by setting aside the impugned Judgment and decree, an order of remand be passed to the Appeal Bench of Court of Small Causes with a direction to permit both the parties to adduce evidence of the alleged subsequent events pleaded 3 in the aforesaid interim notices. 5 I find that the suggestion is reasonable. The specific prayer of the petitioner in his interim notice was for permission to lead additional evidence of the facts stated in the said application. Though the Appellate Court has purported to allow the said notice, no opportunity was granted to the petitioner to adduce evidence. It is true that in the notice taken out by the legal representatives of the original plaintiff, there is no specific prayer for grant of permission to adduce additional evidence of the subsequent events. But, the prayer is that the subsequent events be taken into consideration while deciding the Appeal. Therefore, an opportunity deserves to be granted to the legal representatives of the original plaintiff to adduce evidence of the alleged subsequent events set out in the said notice. 6 In view of the aforesaid discussion, I pass the following order : i) Impugned Judgment and Decree dated 10 th December 1993 is quashed and set aside. The appeal bearing no.668 of 1987 along with cross objection no.7 of 1988 are restored to the Appeal Bench of Court of Small Causes. The learned Chief Judge will assign the appeal and cross objection to the appropriate bench. ii)Interim notice nos.4356 of 1993 and 4549 of 1993 are hereby allowed. iii)The Appellate Court will give an opportunity to the legal representatives of the original plaintiff to lead further evidence of the alleged subsequent events pleaded in the interim notice no.4549 of 4 1993. After the additional evidence is adduced by the legal representatives of the original plaintiff, the Appellate Court will give an opportunity to the petitioner-tenant to adduce evidence of the facts pleaded in interim notice no.4356 of 1993. After permitting the parties to adduce additional evidence as aforesaid, the Appellate Court will decide the appeal afresh. iv)The appeal shall be decided afresh as expeditiously as possible and preferably before end of December 2010. v) All contentions of the parties on merits of the pending appeal are expressly kept open. vi)Rule is made partly absolute in above terms with no order as to costs. vii)Civil Application no.11536 of 1998 does not survive and the same is disposed of. JUDGE