ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 6671 OF 2008 PETITION NO. 6671 OF 2008 PETITION NO. 6671 OF 2008 IN IN IN EXHIBIT EXHIBIT EXHIBIT NO.15 NO.15 NO.15 IN IN IN APPEAL APPEAL APPEAL NO.336 OF 2006 NO.336 OF 2006 NO.336 OF 2006 IN IN IN R.A.D.SUIT R.A.D.SUIT R.A.D.SUIT NO.67 OF 1988 NO.67 OF 1988 NO.67 OF 1988 Bharat Desai & Anr. ...Petitioners (Orig.Defendants) Vs. Naina Manmohan Bahl. ...Respondent. (Orig.Plaintiff) Mr.V.A.Thorat, Sr.Counsel i/by M/s.Little & Co. for the Petitioners. Mr.B.B.Nangre for the Respondent. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 8th October, 2008. : 8th October, 2008. : 8th October, 2008. P.C. P.C. P.C. . By the present Writ Petition, the challenge is made to the impugned order passed by the Appellate Bench of Small Causes Court, Bandra, at Mumbai whereby the Respondent- Original Appellant’s application under Order XXXXI Rule 27 of the Code of Civil Procedure (for short, ( 2 ) "C.P.C.") is allowed. 2. The Appellant has challenged the Judgment and order of her dismissed suit, mainly on the basis of an agreement of licence dated 23rd December, 1971 between the original tenant and the Husband of Appellant-Plaintiff. 3. The Plaintiff is claiming to be in an exclusive use and enjoyment of the suit premises after the death of her husband. She is also claiming protection under the Bombay Rent Act based upon the said agreement as it was in existence on 1st February, 1973. Though it was not produced during the trial and inspite of issuing notice to produce the same, yet, after considering the importance of the said original agreement which definitely goes to the root of the matter and it is necessary for proper adjudication of the rival contentions raised by the parties and as Order XXXXI, Rule 27 creates no bar to take such document on record, if the case is made out. The Appellate Court, therefore, though opposed by the Petitioners-Original Defendants, allowed the said Application and permitted to produce the same and passed the following operative order. ( 3 ) ORDER ORDER ORDER . Application at Exh.15 is allowed. . Appellant/Plaintiff is permitted to produce additional evidence i.e. document and to prove it in accordance with the law. For that purpose, we direct the Presiding Officer of C.R.No.33 to record the evidence that may be tendered by the appellant/plaintiff to prove the document i.e. alleged original agreement dtd.23.12.1971. After evidence of the appellant/plaintiff, the evidence of the respondents/defendants may also be recorded, if any, in rebuttal of the same fact, it is further clarified that no other evidence except the evidence is required to prove the aforesaid document or in rebuttal be allowed. After recording evidence the proceeding be set to this Court along with record. The evidence be recorded on or before 30.9.2008 from the receipt of order. The evidence be recorded in the record of ( 4 ) appeal and not in the record of the trial Court. The record be sent to C.R.No.33 for that purpose. . Parties to appear before trial Court on 14.8.2008." 4. The submissions are; that the document of 1971 ought to have produced when the suit was filed on 1988; there is no proper explanation on record as to why it was not produced when it was available with the advocate, on the contrary, a false reason was given that because of the flood she did not have any papers and, therefore, only Xerox copy was produced on record marked as Article "X"; the statement was also recorded on oath that the original was with the Defendants. 5. This original document definitely goes to the root of the matter, as admittedly it was not produced, as not available during the trial. In paragraph No.19 and 24 of the trial Court Judgment it is observed that the original Leave and License agreement was essential and important document. It is not the case that there is no reference made of this document of the year 1978 at earlier point of time. On the contrary, copy of ( 5 ) agreement is marked as Article "X" as original, was not produced. There are averments made that this document was not traceable inspite of due diligence search and, therefore, could not be produced during the trial. 6. The reasoning, as well as, operative part as reproduced above, in my view, protect the interest of both the parties as the document is yet to be admitted in evidence. It is subject to proof. The parties will get opportunity to raise all the defence. The issue about document being suspicious and genuine or not can be gone into. 7. Now that, the Apex Court in Mahavir Singh Vs. Mahavir Singh Vs. Mahavir Singh Vs. Naresh Naresh Naresh Chandra, AIR 2001 S.C. 134 Chandra, AIR 2001 S.C. 134 Chandra, AIR 2001 S.C. 134 has interpreted purpose and object of order XXXXI, Rule 27 and as I am also of the view that this document is necessary for proper adjudication of the matter and it goes to the root of the matter, and therefore, in the interest of justice, keeping all points open, the reasons so given by the Court below, cannot be said to be perverse. 8. It is difficult to accept that the Court below failed to exercise discretion judiciously, specially when the Respondent Original-Plaintiff averred that this ( 6 ) document could not be produced at the time inspite of due diligence as it was not traceable at all. The Trial Court has already observed the importance of this document which in given case could have affected the basic reasoning as already passed for want of this original document. The non-production of such important document is definitely a lacuna or defect in the evidence as it stands. The lower Appellate Court, therefore, find that it is necessary to allow this application, I see no reason, to interfere with the impugned order. 9. The Petition is, therefore, dismissed. 10. The learned Senior Counsel for the Petitioners seeks four weeks time. The Appellate Court has already granted stay till 24/10/2008. In view of this, Stay is extended for a further period of four weeks. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)