Allowed

Himatlal Devchand Mehta and Ors. v. Bank of Maharashtra

Bombay HC2 Jul 2008WP/3725/2008

Case brief

AI extract

What is this about?

In a writ petition, the Bombay High Court set aside an order of the Appellate Bench of Small Causes Court that rejected an application to produce additional evidence. The Court held that the lease deed, withheld by the respondent-bank during the trial, was vital for determinating mesne profits and could be produced in appeal despite the party's delay in obtaining it.

What did the court decide?

Impugned order set aside; rule made absolute permitting petitioners to adduce additional evidence by producing certified copy of lease deed dated 6-02-2004 subject to costs.

Himatlal Devchand Mehta and Ors. Vs Bank of Maharashtra — Property and Title | Bombay HC (2008)

¶1

:1:

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE JURISDICTION
WRIT PETITION NO.3725 OF 2008

¶3

Himatlal Devchand Mehta & Ors...Petitioners
V/s
Bank of Maharashtra..Respondent

¶4

Mr.Bharat Mehta i/b Prashant Kulkarni for the
petitioners

¶5

Mr. Kunal Bhanage for the respondent

¶6

CORAM : A.A. SAYED, J.

¶7

DATE : 2ND JULY, 2008

¶8

P.C.

¶9

1.Rule; rule made returnable forthwith and
heard finally by consent.

¶10

2.The Appellate Bench of Small Causes Court, at
Mumbai, by the impugned order dated 13th February,
2008 has rejected the Application of the petitioners
seeking permission to adduce additional evidence in
Appeal by producing certified copy of the registered
lease deed dated 6-02-2004. Hence this petition.

¶11

3.The petitioners, who are the owners of the
suit premises, had filed the suit against the
respondent-bank u/s. 41 of the Presidency Small

¶12

:2:

¶13

Causes Court Act, 1982 for recovery of possession of
the suit premises and mesne profits. As stated in
para 2 of the petitioners’ Application during the
pendency of the suit, vacant possession of the suit
premises was handed over by the respondent-bank to
the petitioners on 1-06-2004 and the only issue for
determination which remained in the suit was in
respect of mesne profits. The Court ultimately
disposed of the suit by a judgment and order dated
30-04-2005 directing the respondent-bank to pay to
the petitioners mesne profits @ Rs.36,000/- per month
together with interest @ 4 % per annum from 1-04-2001
to 1-06-2004.

¶14

4.The petitioners being aggrieved by the order
granting mense profits @ Rs. 36,000/- per month
along with interest, filed an appeal for enhancement
of the amount of mesne profits. During the pendency
of this appeal the Application under Order 41 Rule 27
came to be filed by the petitioners to adduce
additional evidence by producing the certified copy
of registered lease deed dated 6-02-2004 executed
between one Bharat Kishorkumar Zaveri as Lessor and
the respondent-bank as lessee in respect of another

¶15

:3:

¶16

premises in close proximity to the suit premises
taken on lease by the respondent-bank.

¶17

5.The case of the petitioners is that during the
cross-examination of the witness on behalf of the
respondent-bank in the Trial Court, it was admitted
that the respondent-bank had acquired another
premises on lease at a stone’s throw distance from
the suit premises. However, the witness on behalf of
the the respondent-bank refused to give any
information regarding the consideration paid by the
respondent-bank for the newly acquired leased
premises. Hence, notice dated 14-09-2004 was given
to the respondent-bank to produce the lease deed, but
the respondent-bank refused to produce the said
document on the ground that it was irrelevant. It
was however, admitted by the respondent-bank’s
witness in the cross-examination that there was such
a lease deed in existence and he had signed the same.
He also stated in his cross-examination that he was
aware of the amount of lease rent which was being
paid in respect of the newly acquired premises by the
bank but he did not wish to disclose the same. The
suit, was ultimately decreed on 3-04-2005 and the

¶18

:4:

¶19

respondent-bank was directed to pay the sum of Rs.
36,000/- per month as mesne profits which amount was
according to the petitioners, incorrectly arrived at
by the Trial Court on the basis of rent method
calculated at six times that of the contractual rent
taking into account the rate of inflation. It is
alleged by the petitioners that the Court has wrongly
rejected the valuation report of the valuer of the
petitioners which valued the fair market rent at Rs.9
lacs per month.

¶20

6.The learned Counsel for the petitioners
submitted that at the relevant time when the evidence
of the petitioners was in progress, the petitioners
were not aware about the existence of the lease deed
and that it was only much later that they got
knowledge of it. It is submitted that it is only
after enquiry with the office of Sub-Registrar,
Mumbai and during the pendency of the Appeal, the
petitioners ultimately could procure certified copy
of the lease deed dated 6th February, 2004 which is
now required to be produced in the Appeal. The
learned Counsel for the petitioners submitted that in
spite of due diligence being exercised, the

¶21

:5:

¶22

petitioners could not procure the lease deed at the
time of the trial. The learned Counsel further
submitted that the comparative letting method was the
best method to arrive at the correct letting value to
fix the mesne profits and that the said document is
vital for the determination of the issue involved in
the appeal. It is further pointed out that in the
instant case the lease deed in question is not that
of a 3rd party, but that of the respondent-bank
itself and the suit premises and the newly acquired
premises by the respondent-bank are in close
proximity and comparable for letting purposes.It was
therefore urged that the petitioners should be
allowed to produce additional evidence and produce
the said certified copy of the lease deed before the
Appeal Court and the impugned order be set aside.

¶23

7.The learned Counsel for the petitioners has
relied upon the case of Mrutunjoy Lenka V. Gangan
Kishore Swain, reported in AIR 1995 Orisa 71 wherein
it was held that rejection of permission to adduce
public documents merely on the ground that they were
not produced earlier was not proper and prejudice
caused to other party can be mitigated by levying

¶24

:6:

¶25

costs.

¶26

8.The learned Counsel for the respondent-bank on
the other hand, pointing out Order 41 Rule 27 of CPC,
submitted that the lease deed, copy of which is
sought to be produced by the petitioners was within
their knowledge and the petitioners could have
procured the same, had they exercised due diligence
in the matter and they ought to have produced the
same in the Trial Court. It is contended that having
failed to do so, the Appeal Court has rightly refused
to exercise its discretion and rejected the
Application of the petitioners to adduce additional
evidence. The contentions on behalf of the
Petitioners are denied and it is submitted that the
document is not relevant and no useful purpose will
be served in allowing the petitioners to produce
additional evidence. In support of his contentions
the learned Counsel for the respondent-bank relied
upon the decisions in the case of (1) Jaipur
Development Authority V. Kailashwati Devi, reported
1997 DGLS 1115, (2) N. Kamalam V. Ayyasamy,
reported in 2001 DGLS 944, (3) Adil Jamshed Frenchman
V. Sardar Dastur Schools Trust, reported in 2005

¶27

:7:

¶28

DGLS 130 and (4) K.R.Mohan Reddy V. Net Work
Incorporation, reported in 2007 DGLS 1112.

¶29

9.I have heard the ld. Counsel for the parties
and perused the material on record.

¶30

10.At the outset it would be necessary to refer
to the provisions of Section 107 and Order 41 Rule 27
of CPC which deal with production of additional
evidence in the Appellate Court. Section 107 of the
Code interalia enables an Appellate Court to take
additional evidence or to require such other evidence
to be taken and reads as under:-

¶31

"Sec 107-Powers of appellate Court -(1)
Subject to such conditions and limitations as
may be prescribed, an appellate Court shall
have power-

¶32

(a) to determine a case finally;

¶33

(b) to remand a case;

¶34

(c) to frame issues and refer them for trial;

¶35

(d) to take additional evidence or to require
such evidence to be taken.

¶36

(2) Subject as aforesaid, the appellate Court
shall have the same powers and shall perform
as nearly as may be the same duties as are
conferred and imposed by this Code on Court of
original jurisdiction in respect of suits
instituted therein."

¶37

:8:

¶38

11.The conditions and limitations stated in

¶39

sub-section (1) above, are prescribed in Order 41
Rule 27, which provides as under:

¶40

"O 41 R 27 - Production of additional evidence
in Appellate Court- (1) The parties to an
appeal shall not be entitled to produce
additional evidence, whether oral or
documentary, in the Appellate Court. But if-

¶41

(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or

¶42

(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was
not within his knowledge or could not, after
the exercise of due diligence, be produced by
him at the time when the decree appealed
against was passed, or

¶43

(b) the Appellate Court requires any document
to be produced or any witness to be examined
to enable it to pronounce judgment, or for any
other substantial cause, the Appellate Court
may allow such evidence or document to be
produced or witness to be examined.

¶44

(2) Whenever additional evidence is allowed to
be produced by an Appellate Court, the Court
shall record the reason for its admission."

¶45

12.It is to be borne in mind that in the present
case what the petitioners are seeking, is production
in the Appellate Court, of a certified copy of a
lease deed entered into between the respondent-bank

¶46

:9:

¶47

and a 3rd party in respect of a premises which is in
close proximity to the suit premises and which
according to the petitioners would help in arriving
at the true letting value and fixing the correct
quantum of mesne profits in relation to the suit
premises.

¶48

13. In light of what is stated in Order 41 Rule 27
(aa) which is applicable in the instant case, let us
consider whether the said lease deed could have been
produced by the petitioners at the time of the trial
and whether the petitioners have exercised due
diligence to produce the said document in the Trial
Court and whether the Appeal Court was right in
rejecting the Application of the petitioners for the
production of additional evidence in the appeal.

¶49

14. Undisputedly the lease deed dated 6-02-04, is
between the respondent-bank and 3rd party and the
same is a private document and is in custody of the
respondent-bank. At the time of cross-examination in
the Trial Court, despite a notice for production of
the lease deed, the witness on behalf of the
respondent-bank refused to produce the same. The

¶50

:10:

¶51

witness has in fact admitted in the cross-examination
that he is aware as to the quantum of monthly lease
amount being paid by the respondent-bank in respect
of the newly acquired premises and that he has
himself executed that said lease deed. He, however
refused to disclose the quantum. It was therefore
obvious that the respondent-bank was interested in
seeing that the document does not come before the
Court and the same was being withheld. The suit was
thereafter decreed on 30-04-05. It is in these
circumstances, the lease deed which may prove to be a
vital document and which would throw light on the
valuation for the purposes of arriving at the figure
of mesne profits has not come before the Trial Court,
in spite of an opportunity being given and calling
upon the respondent-bank to produce the document.
For the respondent-bank to now say that the
petitioner did not exercise due diligence is rather
curious. The conduct of the respondent-bank, was
rather wanting and they being a Bank performing
public function were expected to act fairly in the
matter.

¶52

15.It is to be noted that the issues in the suit

¶53

:11:

¶54

were framed on 6-02-2003 and evidence of the

¶55

petitioner-plaintiff commenced on 18-02-2003 and the
cross-examination of the petitioner started on
20-03-2003 and was concluded on the same day. The
Architect on behalf of the petitioners was examined
and he had filed affidavit of evidence on 24-03-2003
and his cross-examination began on 16-07-2003 and
ultimately concluded on 27-01-2004. Thereafter the
suit was adjourned to 17-02-2004 for evidence of
respondent-bank. The respondent-bank thereafter
vacated the suit premises on 1-06-2004. The
respondent-bank’s affidavit of evidence was filed on
7-07-2004, wherein the fact of handing over the
possession of the suit premises is also stated and
therefore, the only issue which remained before the
Trial Court was in respect of mesne profits.

¶56

16.The evidence on behalf of the petitioners, as
stated, above concluded on 27-01-2004. Significantly
it was only thereafter i.e. on 06-02-04 that the
lease deed in question was executed. Therefore, the
lease deed in question could not in any event have
been within the knowledge of the petitioners in the
evidence adduced on their behalf, which concluded

¶57

:12:

¶58

prior to the lease deed being executed. When the
petitioners got knowledge about the existence of the
lease deed after their evidence was over, an attempt
was made by them to have the lease deed produced by
the respondent-bank during their cross-examination,
after giving notice to produce the same. The
respondent-bank however, as stated above, refused to
produce the same. Thereafter as it transpires, it
was only during the pendency of the Appeal that a
certified copy of the lease deed was acquired by the
petitioners on making necessary inquiry and
application before the Sub-Registrar of Assurances.
It was in these circumstances, that the Application
for production of additional evidence was made in the
Appeal Court. Pertinently, no reply to the
Application of the petitioners controverting the
facts stated therein has been filed by the
respondent-bank and the attempt to file reply at a
belated stage was rejected by the Appeal Court.
Considering the above, in my view, the
respondent-bank cannot be heard to say that the
petitioners are not entitled to produce the document
in the appeal Court since they have failed to
exercise due diligence in production of the said

¶59

:13:

¶60

document in the Trial Court. The Appeal Court, as it
appears, has overlooked the above facts whilst
passing the impugned order.

¶61

17. It is pertinent to note that the valuation of
the monthly lease rent of the suit premises by the
petitioners at Rs. 9,00,000/- p.m. was rejected by
the Trial Court and the Trial Court has arrived at a
valuation of Rs. 36,000/- per month towards the
mesne profits on the basis of rent method, calculated
at six times the rent which was being paid earlier.
The Appeal, which is pending, is filed for
enhancement of the quantum of lease rent and
challenges the valuation at Rs. 36,000/- per month
the Trial Court. In my prima facie view, it is
desirable that comparable letting method, which is a
better and more reliable method is adopted rather
than rent method, keeping in mind the peculiar facts
and circumstances of this case, where the respondent-
bank has lost protection of the Rent Act. Merely
because there has been some delay in filing the
Application during the pendency of the Appeal ought
not to have resulted in the Application of the
petitioners being thrown out, particularly when the

¶62

:14:

¶63

Appeal is yet to be decided. Ultimately the Courts
are required to do substantial justice and in the
facts of this case, the additional evidence was
prima-facie for the production of a vital document
and would only enable the Appeal Court in pronouncing
better judgment and effectually adjudicate the
dispute. Undoubtedly, the respondent-bank would
always have the opportunity to rebut the evidence.

¶64

18. Prima-facie, I find that the document in
question is relevant and the document could not be
produced in trial Court by the petitioners for good
reasons. However it would ultimately be for the
concerned Court to decide the relevancy and
admissibility of the document in question in
accordance with law after adducing evidence in the
matter and all contentions in that regard are kept
open. I am satisfied that conditions stated in
clause (aa) of Order 41 Rule 27 for production of
additional evidence are met with. It is to be noted
that the document in question was a private document
of the respondent-bank and was not in the custody of
the petitioners. I find that the document in
question would have a bearing on the fixation of

¶65

:15:

¶66

mesne profits which is the subject matter of
challenge in the Appeal Court and the document would
help in arriving at a just and meaningful decision in
the matter.

¶67

19. The Petitioners’ reliance on the decision of the
single Judge of the Orissa High Court in the case of
Mrutunjoy Lenka (supra) is in my opinion misplaced,
inasmuch as in that case the documents sought to be
produced were public documents and there was no
dispute about their relevancy and admissibility.

¶68

20. Coming to the cases relied upon by the
respondents, it is to be noted that in the case of
Jaipur Development Authority (supra), the Apex Court
was dealing with the interpretation of the word -
additional- in clause (aa) of Order 41 Rule 27 of CPC
as the suit was decreed ex-parte and the question
there was whether it was permissible to restrict
clause (aa) for the benefit of only those who had
adduced some evidence in the Trial Court. It was
held by the Apex Court that it was not necessary that
the party seeking to introduce additional evidence
must have also been one who has led some evidence in

¶69

:16:

¶70

the trial Court. I do not see how that decision is
of any help to the respondent-bank, as in the present
case we are not dealing with a suit which is decreed
ex-parte and both the parties had infact adduced
evidence in the Trial Court.

¶71

21. In so far as the case of N.Kamalam (supra) is
concerned, the Application for production of
documents were made in the Appeal after a lapse of
ten years and the Apex Court held that the provisions
of Order 41 Rule 26 are not engrafted so as to
authorise any lacunae or gaps in evidence to be
filled up. In the present case I am satisfied that
the additional evidence sought to be produced by the
petitioners is not for the purposes of filling any
gaps or lacunae, and therefore, that decision would
also not be of any assistance to the respondent-bank.

¶72

22. In the case of Adil Jamshed Frenchman (supra),
relied upon on behalf of the respondent-bank, the
first Appellate Court had allowed the Application of
the tenants to produce additional evidence and held
that the tenants were not parties to the
correspondence between the landlord and 3rd party and

¶73

:17:

¶74

they could not have earlier obtained the knowledge of
the document in spite of due diligence. The High
Court set aside the order of the first appellate
court and held that the tenants had failed to
establish that notwithstanding the exercise of due
diligence, such evidence was not within their
knowledge or could not, after exercise of due
diligence, be produced by him at the time when the
decree appealed against was passed. The Apex Court,
while setting aside the order of the High Court and
restoring the order of the first Appellate Court,
observed that the correspondence entered into by the
landlord with the 3rd party could not have been
within the knowledge of the tenants and therefore the
tenants’ statement that the documents could not have
been produced before the trial Court in spite of the
exercise of due diligence, was highly probable. The
Learned Counsel for the respondent-bank argued that
the underlying principle of this decision is that
once it is established that the additional evidence
was within the "knowledge" of the petitioners at the
stage of the trial, the Application before the Appeal
Court to produce additional evidence ought to be
rejected. This decision in my view, would also not

¶75

:18:

¶76

be of assistance to the respondent-bank inasmuch as
in the present case, the lease deed was executed by
the respondent-bank only after the evidence on behalf
of the petitioners was already over and it obviously
cannot be said that the document was within the
knowledge of the petitioners at the time of their
evidence being adduced. Even thereafter, when the
petitioners got knowledge of the existence of the
document, the same was not in the custody of the
petitioners, but was in the custody of the
respondent- bank and they were not aware of the
particulars of the document. Pertinently the
respondent-bank had refused to produce the document
in the cross-examination in spite of notice to them
to produce the same and their witness had refused to
disclose the particulars thereof. In these
circumstances, it would not be proper on the part of
the respondent-bank to contend that the document was
within the knowledge of the petitioners and ought to
have been produced in the Trial Court. It is however
to be noted that in decision cited above the
Application of the tenants for producing additional
evidence ultimately came to be allowed by the Apex
Court.

¶77

:19:

¶78

23.In the case of K.R. Mohan Reddy (supra),
cited on behalf of the respondent-bank it was held by
the Apex Court that it would be for the Applicant to
show that the conditions precedent for application of
clause (aa) of sub-rule (1) of Rule 27 of Order XLI
is different from that of clause (b) mentioned
therein are satisfied. In the event the former is
applied, it would be for the applicant to show that
the ingredients or conditions precedent mentioned
therein are satisfied. There can be no dispute about
the proposition laid down in the said decision;
however I do not find that this decision can be of
any assistance to the respondent-bank in view of the
fact that in the case in hand we are not concerned
with clause (b) and considering the findings arrived
at by me in the instant case insofar as clause (aa)
is concerned.

¶79

24.In view of the aforesaid discussion, I find
that the discretion exercised by the Appeal Court in
the present case is improper and not judicious and
would result in grave injustice. The impugned order
cannot be sustained and interference under article

¶80

:20:

¶81

227 of the Constitution is therefore, warranted.
Consequently, the petition succeeds and the impugned
order is set aside and rule is made absolute. The
petitioners are permitted to adduce additional
evidence by producing certified true copy of the
registered lease deed dated 6-02-2004, subject to
costs, quantified at Rs. 20,000/- being paid by the
petitioners to the High Court Legal Aid Committee. I
am not inclined to grant the payment of costs to the
respondent-bank considering their conduct in the
matter and the fact that this entire exercise could
have been avoided, had the respondent-bank produced
the document in the Trial Court when called upon to
do so.

¶82

25. I may hasten to add here that my views in so far
as valuation is concerned are only prima facie and
the Appeal Court will not be influenced by the
observations made in this order at the hearing of the
Appeal, which will be decided on its own merits.

¶83

26. It is left to the discretion of Appellate Court
as to whether it would want to take the additional
evidence itself or direct the Trial Court to do so.

¶84

:21:

¶85

The Appeal Court would however, in any case, specify
and record the point to which the evidence is to be

¶86

confined.

¶87

( A.A. SAYED, J.)

¶88

IN THE HIGH COURT OF JUDICATUREAT BOMBAY

¶89

APPELLATE JURISDICTION

¶90

:22:

¶91

WRIT PETITIONNO. 3725 OF 2008

¶92

DATEOF DECISION :

¶93

2NDJULY, 2008.

¶94

FOR APPROVAL AND SIGNATURE:-

¶95

The Hon’ble Mr.Justce A.A.Sayed.

¶96

1. WhetherReporters of Local Reporters may be allowed to see the judgment?

¶97

2. To be referred to the Reporters or not ?

¶98

3. Whether Their Lordships wish to see the fair copy of the judgment?

¶99

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950, or any Order thereunder ?

¶100

5. Whether it is to be circulated to Civil Judges?

¶101

6. Whetherthe case involves an important questionof law and whether a copy of the judgment shouldbe sent to Nagpur Office ?

¶102

*****

Himatlal Devchand Mehta and Ors. v. Bank of Maharashtra

Case brief

What is this about?

What did the court decide?

Himatlal Devchand Mehta and Ors. v. Bank of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Pandurang Manikrao Sutrave and Ors. Vs Kisanrao Dattoba Sutrave and Ors.

V. B. Construction Co. Vs Government of Maharashtra and Ors.

Tulsibai Babu Tandel and Ors. Vs Ganibai Balkrishna Kadu and Ors.

Ramchandra Neminath Mohite and Ors. Vs Satyabhama Dada Vagare and Ors.

Sou Padmaja Appasaheb Takale Vs Ramchandra Balu Takale and Anr.

Ramchandra Neminath Mohite and Ors. Vs Satyabhama Dada Vagare and Ors.