1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 4620 of 2011 M/s Oswal Trading Co. and others. Vs. Miss. Urmila M. Lad. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. N.D. Dangre, Adv. for the petitioners. Mr. R.M. Sharma, Adv. for the respondent. CORAM : SMT. VASANTI A. NAIK J. DATE : 11 th November, 2011. By this petition, the petitioners impugn the order passed by the First Appellate Court on 27.07.2011, below Exh. 39, rejecting an application filed by the petitioners under Order 41 Rule 27 of the Code of Civil Procedure for permission to adduce oral evidence. The respondent is the original plaintiff. A suit was filed by the plaintiff for recovery of possession under section 16(1)(g) of the Maharashtra Rent Control Act. It was the case of the respondent that the petitioners were in occupation of one shop block ad-measuring 325 sq. ft. in the house owned by the respondent. It was stated in the application that there was a shop block ad-measuring 130 sq. ft in the building which was lying vacant. The respondent pleaded that the respondent needed the suit premises for her bonafide occupation. The particulars about the need of the respondent-landlady were stated in the plaint. The petitioners filed the written statement and denied the claim of the respondent. It was stated in the written statement that the other shop ad-measuring 130 sq. ft. was lying vacant and was 2 in the possession of the respondent since long. The petitioners denied the claim of the respondent of bonafide need and pleaded that the respondent not only had the other vacant shop block in her possession but there was also an open area on the ground floor ad- measuring 400 sq. ft. The parties tendered the evidence and on an appreciation of the same, the Trial Court came to a conclusion that the respondent reasonably and bonafide required the suit premises for her own use and occupation. The court further held that the respondent would suffer greater hardship in case the decree of possession was not passed in her favour. However, in view of the provisions of Section 58 of the Maharashtra Rent Control Act, the Trial Court held that the suit filed by the respondent-landlady was not tenable. In the result, the suit filed by the respondent was dismissed with costs. Against the judgment dismissing the suit, the respondent preferred a first appeal. The petitioners also filed a cross objection in the first appeal challenging the finding recorded against the petitioners on the issue of bonafide need and comparative hardship. When the matter was pending before the first appellate court, the petitioners filed an application under Order 41 Rule 27 of the Code of Civil Procedure for permission to place certain documents on record. The Documents comprised of a notice issued by the respondent-landlady to the petitioners on 03.04.2008, an acknowledgment of the respondent of the same, the reply issued by the counsel for the petitioners to the notice issued by the respondent, the postal receipt thereof, the acknowledgment and a site plan of the ground floor of the suit house. The First Appellate Court permitted the petitioners to produce these documents on record. When the petitioners issued a notice to the respondent to admit the documents, the respondent admitted all the other 3 documents except the document i.e. the site plan of the ground floor of the suit house. Since the respondent had admitted the other documents, the First Appellate Court exhibited them but did not exhibit the site plan. An application was moved by the petitioners under Order 41 Rule 27 of the Code of Civil Procedure for tendering of oral evidence for proving the site plan, the document at serial no.6. The First Appellate Court, however, by the impugned order dated 27.07.2011 rejected the application. On hearing the learned counsel for the parties and on perusal of the provisions of Order 41 Rule 27 of the Code of Civil Procedure, it appears that the First Appellate Court did not commit any error in rejecting the application filed by the petitioners for tendering oral evidence. On a perusal of the provisions of Order 41 Rule 27 of the Code of Civil Procedure, it is clear that none of the conditions prescribed in the said provisions for allowing the production of additional evidence were satisfied in this case. In the instant case, the respondent had approached the Trial Court with clean hand and had pleaded in the plaint that the respondent was also in occupation of an additional shop block ad-measuring 130 sq. ft., which was vacant. The petitioners had admitted the fact about the vacancy of an additional shop though it was stated in the written statement that the shop did not measure 130 sq. ft. but was ad-measuring 150 sq. ft. In view of these pleadings, it is necessary for the parties to prove before the Trial Court that the vacant shop in possession of the respondent was either convenient or not convenient for the respondent for satisfying her bonafide need. The site plan could have been, as well, produced by the petitioners before the Trial Court. The petitioners, however, did not do so and also did not tender any oral evidence in regard to the site plan before the trial court. There is nothing on record to show that the 4 petitioners had established that notwithstanding the exercise of due diligence, the petitioners could not have produced the site plan or could not have tendered any evidence in regard to the suitability of the vacant premises in occupation of the respondent in the Trial Court. In this background, the First Appellate Court did not commit any error whatsoever in rejecting the application filed by the respondent for tendering oral evidence on the site plan which was produced on record. Merely because the other party consents to the production of certain documents at the appellate stage, the court is not supposed to admit the document on record, unless the court is satisfied that either of the conditions provided by the provisions of Order 41 Rule 27 exist. In the instant case, the First Appellate Court has mechanically permitted the production of the 6th document on record. Be that as it may, in any case, there is nothing wrong with the impugned order passed by the First Appellate Court on 27.07.2011 rejecting an application for permission to tender oral evidence on the site plan. There is one more aspect which needs to be considered. Apart from the fact that the site plan was not produced before the Trial Court and was sought to be produced by the petitioners before the First Appellate Court, it is necessary to note that the appeal was filed as early as in the year 2006 and the arguments were advanced in the civil appeal in the year 2008. The respondent is a senior citizen and has sought for the eviction of the petitioners on the ground of bonafide need. The First Appellate Court rightly held that it was evident from the facts and circumstances of the case, that the application was filed by the petitioners for tendering of oral evidence for protracting the proceedings. The submission made on behalf of the petitioners that the applications were filed for production of documents and also for tendering oral evidence 5 only because the respondent had issued legal notice to the petitioners during the pendency of the appeal stating that the vacant premises were not suitable is unacceptable in the facts and circumstances of the case as the parties went to the trial with a clear case about vacancy of an additional shop block and there was no need to tender any additional evidence, much less any oral evidence in regard to the suitability of the shop block at the appellate stage. This exercise ought to have been conducted by the parties before the Trial Court. In the facts and circumstances of the case, the First Appellate Court rightly held that there was no question of adducing any oral evidence in regard to the document. Hence, for the reasons aforesaid, the writ petition is dismissed with no order as to costs. However, since the first appeal is filed in the year 2006 and since the respondent is a senior citizen, the First Appellate Court is directed to decide the first appeal within a period of four months. JUDGE Hirekhan.`