1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6589 OF 2008 Vincet Gabrial Gomes & Ors. .. Petitioners versus Sakharam Yashwant Nalawade & Anr. .. Respondents Mr.Sudarshan Shinghrani for the petitioners. Mr.J.S.Kini i/by Mr.Suresh Dubey for respondent No.1. CORAM : A.S.OKA, J. DATE : 2nd September 2009. P.C.: . Heard learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. Considering the narrow controversy involved, the petition is taken up for final disposal at admission stage. The petitioners are the plaintiffs and the respondents are the defendants. The petitioners are the landlords of the respondents in respect of the suit premises which is a room in a chawl. The petitioners filed a suit for eviction against the respondents under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. One of the grounds pleaded in the suit was 2 that the 1st respondent has acquired a suitable premises bearing Room No.201 in Laxmi Park No.1, Building No.5, Lokmanya Tilak Nagar, Thane. 2. The suit was decreed by the Court of Small Causes. The respondents preferred an appeal before the Appeal Bench of Court of Small Causes. In the said appeal an application was made by the petitioners landlords seeking permission to lead additional evidence. A permission was sought to produce certain documents by way of additional evidence for showing that the respondents have acquired another accommodation in the form of a flat at N.M.M. Society, Kalva, Thane. By the impugned order, the Appeal Bench of the Court of Small Causes has dismissed the said application. The first ground on which application is dismissed is that it is not the case made out before the trial Court that the respondents have acquired a flat which is described in documents sought to be produced by way of additional evidence. The second ground which is the main ground on which application is dismissed is that there is no explanation forthcoming as to why the petitioners-plaintiffs could not produce the said documents during the pendency of the suit. 3. The learned counsel appearing for the petitioners submitted that the Appeal Bench has taken a very hyper-technical view of the 3 matter while dealing with the application under clause (b) of Rule 27 of Order XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code). He submitted that the said documents which were sought to be produced were not within the knowledge of the petitioners and the documents were obtained by a detective agency appointed by the petitioners. He pointed out that an application at Exhibit 22 has been made by the petitioners before the Appeal Bench seeking the amendment of the plaint for adding a ground that the respondents have acquired another accommodation in the form of Room No.14 at N.M.M.Society, Kalva, Thane. The amendment has been sought for placing reliance on the same documents which were sought to be produced by way of additional evidence. 4. The learned counsel appearing for the respondents submitted that in any event the application made by the petitioners could not be allowed as a specific case made out by the petitioners is that they approached the detective agency only after a decree was passed by the trial Court. He submitted that the Appellate Court is right in observing that there is no explanation forthcoming as to why the said documents could not be produced earlier notwithstanding exercise of due diligence. He submitted that in absence of pleadings to the effect that another premises has been acquired by the respondents, the 4 production of the said documents could not have been allowed. He submitted that after the impugned order was passed, an application for amendment has been filed by the petitioners. He submitted that very fact that application for amendment of the pleadings has been filed is sufficient to dismiss this petition under Article 227 of the Constitution of India. 5. I have given careful consideration to the submissions. In the plaint as it stands, the petitioners have pleaded that the respondents have acquired a Room No.201 in Laxmi Park No.1, Building No.5, Lokmanya Tilak, Thane. By the application for additional evidence, the petitioners are seeking to produce a telephone bill and voters list for alleging that the respondents have acquired another accommodation in the form of Block No.14 in N.M.M.Society, Kalva, Thane. The telephone bill which is sought to be produced is of October 2007 and the voters list which is sought to be produced has been published on 10th July 2007. Both the documents have come into existence after the decree was passed by the trial Court. 6. However, as of today, there is no pleading that the respondents have acquired another flat at Kalva which is reflected from the documents sought to be produced. Now it is pointed out that an application for amendment of plaint has been filed by the petitioners. 5 The amendment sought is for permitting the petitioners to plead the fact of acquisition of the said Block No.14 in N.M.M.Society, Kalva, Thane. By the proposed amendment, the petitioners are seeking to rely upon the documents which are sought to be produced by way of additional evidence. The said application for amendment of the plaint is still pending. 7. The application for production of additional evidence could not have been considered on the date on which the impugned order was passed in absence of pleadings. Now the petitioners have come out with an application for amendment of the plaint. The present application can be considered on merits only if the petitioners succeed in the application for amendment of the plaint. 8. Therefore, the application for adducing additional evidence will have to be considered only after and only if the application for amendment of the plaint made by the petitioners is allowed. Unless there is a foundation in the pleadings, the question of allowing the petitioners to produce the documents which are sought to be produced cannot be considered. 9. Hence, I pass the following order: : O R D E R : 6 (a) The impugned judgment and order dated 21st June 2008 passed below application at Exhibit 16 is quashed and set aside and application at Exhibit 16 is restored to the file of the Appellate Court. (b) The Appellate Court before dealing with application at Exhibit 16 will take up the application at Exhibit 22 (for amendment of the plaint) for hearing. The application at Exhibit 16 will be taken up for hearing only if the application at Exhibit 22 filed by the petitioners is allowed. The application at Exhibit 16 will not survive if application at Exhibit 22 is rejected. (c) All contentions of the parties in the pending application at Exhibit 22 are expressly kept open and the said application shall be decided after taking into account the objections raised by the respondents. (d) All contentions of the respondents on application at Exhibit 16 are expressly kept open. (e) The petition is dismissed in above terms. (A.S.OKA,J)