WP. 3082-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 3082 OF 2011 Hrishekesh V. Barve ...Petitioner Vs. Vikas V. Deodhar & Ors. ...Respondents *** Mr. S. N. Chandrachood, for the Petitioner. Mr. R. V. Govilkar, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JULY 11, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the petitioner and respondent No.1. Petitioner is the original defendant No. 2 /tenant and respondent No.1 to 3 are the original/plaintiffs/ landlord. 2. Brief facts are as under- . The plaintiffs have filed a suit for recovery of possession of the suit premises on the ground of bona fide and personal requirement. The trial court decreed the said suit in favour of the landlord. An appeal was preferred by the defendants/tenant in the lower appellate court. WP. 3082-11 - 2 - During pendency of the proceedings before the lower appellate court, an application was filed under Order 41, Rule 27 of the Civil Procedure Code. In the said application a relief was claimed by the defendants/ tenant for production of the two documents. The first document was a decree passed by the trial court in respect of the proceedings taken out by the landlord/original plaintiffs; and the second document was a copy of notice, given by the defendants’ advocate to the Society where the plaintiffs/landlord were residing, after having acquired an alternate accommodation. The lower appellate court rejected this application on the ground that the conditions which were contained in Order 41, Rule 27 had not been complied with. 3. The learned counsel appearing for the tenant submitted that the plaintiffs had suppressed this fact about acquisition of an alternate accommodation and the trial court had not referred to the evidence of the witness which was examined by the tenant and who had produced the relevant record from the Bombay Municipal Corporation office. He submitted that therefore, this application has been filed by way of an additional evidence to establish this fact. It is submitted that these documents were necessary for the purpose of establishing the fact of acquisition of alternate accommodation and suppression of fact by the WP. 3082-11 - 3 - plaintiffs/ landlord in the trial court. Reliance was placed on the two judgments. One judgment was of the Gujrat High Court in the case of – Saiyed Sahejadmiya Sulemanmiya (dead) through heirs Sahedabegum and Ors, Petitioners vs. Abdul Razak Isabhai Memon & Ors., Respondents1; and judgment of the Apex Court in the case of – Adil Jamshed Frenchman (D) by Lrs. vs. Sardar Dastur Schools Trust2. It was further submitted that the defendant/tenant was not asking the appellate court to produce the documents which were referred to by the trial Court. 4. On the other hand, learned counsel for the plaintiffs submitted that so far as first document i.e. certified copy of the decree is concerned, the defendant was aware of the existence of said document and had cross-examined the plaintiffs’ witness; and so far as the second document is concerned, it is an office copy of the notice which was sent by the defendants’ advocate to the Society. It is submitted that the lower appellate court had rejected this application by giving cogent evidence and therefore, no case is made out for interfering with the said order while exercising jurisdiction under Art. 227 of the Constitution of India. 5. There is some substance in the submissions made by respondent No.1. By the application filed under Order 41, Rule 27 of C. 1 AIR 1999 Gujarat 295. 2 2005(2) SCC 476. WP. 3082-11 - 4 - P. C., the tenant has sought production of documents, which is by way of additional evidence in support of his case that case of bona fide requirement is not made out. Such application is generally allowed by the appellate court. However, in the present case, so far as first document is concerned, the plaintiffs’ witness was cross-examined by the defendant. He was very well aware about the existence of the said documents and he could have after exercising due diligence produced the said documents in the trial court itself. Secondly, so far as the second document is concerned, a notice which was given by the defendant’s advocate to the Society, is a document which rightly the lower appellate court did not permit its production since it was an additional evidence which was sought to be created during pendency of the appeal and that document itself would not prove the case of defendants/tenant. 6. Thirdly, since the Corporation’s witness has produced certain documents and those documents have not been considered by the trial court, the appellate court has observed that it can re-appreciate that evidence at the time of final hearing. By re-appreciating the documents on record, the defendants can very well argue that there was a suppression of fact about existence of alternate accommodation by the plaintiff and the fact of acquisition of alternate accommodation. Since WP. 3082-11 - 5 - the appellate court has observed that it can re-appreciate the evidence being a first appellate court, no prejudice would be caused to the defendant. In my view, there is no infirmity in the order passed by the lower appellate court. The ratio of the judgments on which reliance is placed does not apply to the apply to the facts of the present case. 7. So far as judgment of the Apex Court is concerned, the documents which were sought to be produced were held to be material documents, affecting the bona fide requirements and in view of this, Apex Court permitted production of the said documents. Similar is the case in the judgment of Gujrat High Court where additional documents to prove the partnership was produced. No case, therefore, is made out for interference with the impugned order. Civil Writ Petition is, therefore, dismissed. [ V. M. KANADE J.]