Partly allowed

Chandradev Dakshini Singh v. Smt. Sulochana Tukaram Kochare and Ors.

Bombay HC11 Jun 2021WP/666/2020

Case brief

AI extract

What is this about?

The High Court dismissed initially but then set aside impugned orders rejecting an application for additional evidence. It held the lower court failed to examine Clause (aa) of Order 41 Rule 27 CPC regarding due diligence. The petitioner was granted liberty to refile the application subject to costs.

What did the court decide?

Orders dated 11th and 26th November 2019 set aside; petitioner granted liberty to file another application seeking evidence permission subject to Rs.10,000 cost.

Chandradev Dakshini Singh Vs Smt. Sulochana Tukaram… — Property and Title | Bombay HC (2021)

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WP-666-2020 11.6.2021

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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W RIT PETITION NO. 666 OF 2020

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Chandradev Dakshini Singh… .Petitioner/
Orig. Plaintiffs

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V/s.
Smt. Sulochana Tukaram Kochare
and Ors. ...Respondents
(Resp.no.1 to 4-
 Orig Defendants)
* * *

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Mr. Vikas Singh, Advocate for the petitioner.

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Ms. Mansi Bane, AGP for State-respondent no.5.

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CORAM : SANDEEP K. SHINDE, J.

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Closed for orders on : 9th June, 2021.

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Pronounced on : 11th June, 2021.

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P.C. :

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1. This petition challenges the order dated 26th

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November, 2019 passed by the Appellate Bench of Small

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Causes at Mumbai (Bandra) in Appeal No.17/2015 in
R.A.E. & R. Suit No. 540/1999.

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2. Petitioner’s suit for eviction and recovery of
possession of the suit premises under the Rent Act was
dismissed by the learned trial Court in January, 2015. He
preferred substantive Appeal before the Appellate Bench.
Pending Appeal, the petitioner moved an application
under Order 41 Rule 27 of the Civil Procedure Code
(“CPC” for short), seeking permission to produce
additional documentary evidence in the form of the
extract of voter’s list. In para-3 of the application,
petitioner pleaded that pending appeal, he got to know
about extract of electoral roll, which shows, defendants
no.1 and 2 were occupying the suit premises with family
members. The application was rejected vide order dated
11th November 2019, on the ground that appellant did not
file any document alongwith an application. Whereafter

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petitioner moved an application below Exhibit-12,
contending that order dated 11th November, 2019 was

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passed without hearing him and therefore requested to
recall the order, restore the application and decide the
same on merits. This application below Exhibit-12 was
heard by the Appellate Bench and rejected it vide order
dated 26th November, 2019. The Appellate Bench,
declined to recall the order dated 11th November, 2019

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also on the ground that petitioner had not filed copies of
additional documentary evidence alongwith an
application made under Order 41 Rule 27. Aggrieved
petitioner, thus filed this petition under Article 227 of the
Constitution of India.

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3. At the outset, it may be stated that, Section

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107(d) of the Code of Civil Procedure, is an exception to
the Rule which enables the Appellate Court to take
additional evidence or to require such evidence to be

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taken on the fulfillment of conditions laid down under

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Rule 27 of Order 41; however, the Court is not bound

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under the circumstances mentioned in the Rule to permit
additional evidence and parties are not entitled to it as of
right, and the matter is entirely in the discretion of the
Court as held in the case of Mahavir Singh & Ors.

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V/s. Naresh Chandra and Ors., AIR (2001) SC

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134. In the case in hand, neither the petitioner nor the
learned Appellate Bench examined the provisions of
Clause (aa) of Rule 27, which reads as under :

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“27. Production of additional evidence in Appellate Court-

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[(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,]”

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4. The petitioner in his application did not plead

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that, upon the exercise of due diligence, the voters
list/extract was not within his knowledge nor he could,
after the exercise of due diligence, produce it at the time
when the decree, appealed against, was passed. The
averments in para-3 are vague and uncertain and
possibly do not meet the requirements of Clause (aa) of
Rule 27 Order 41 of the CPC. Insofar as the impugned
orders i.e. orders dated 11th November, 2019 and 26th

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November, 2019 are concerned, the Appellate Court
equally failed to consider the provisions of Rule 27 of
Order 41 of the CPC and in particular Clause (aa). The
only ground on which the Appellate Bench declined to
entertain the application was that, the petitioner did not

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produce the copies of the additional documentary
evidence alongwith the application. In my view, the
Appellate Bench ought to have examined the applicant’s
request, in view of the provisions of Clause (aa) of the

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Rule-27. That to say, petitioner did not annex/produce
electoral role, was not a valid ground to reject the
application. It thus, amounts to failing to exercise the
jurisdiction. Be that as it may, the manner in which the
application was moved equally shows, the petitioner had
approached the Appellate Court in a most casual manner
without reference to provisions of Rule 27. In the
circumstances and in view of the facts of the case, the
petitioner is granted liberty to file another application in
accordance with law seeking permission to produce the
additional documentary evidence and if such an
application is made, the Appellate Court shall hear the
same alongwith the hearing of Appeal No.17/2015 subject
to cost of Rs.10,000/- which the appellant shall pay to the
respondents. As a result, the order dated 11th November,
2019 passed below Exhibit-12 and order dated 26th
November, 2019 passed below Exhibit-14 in Appeal
No.17/2015 in R.A.E. & R Suit No.540/1999 by the

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Appellate Bench, Court of Small Causes at Mumbai are

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set aside.

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5. The petition is allowed and disposed of in the

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aforesaid terms.

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(SANDEEP K. SHINDE, J.)

Chandradev Dakshini Singh v. Smt. Sulochana Tukaram Kochare and Ors.

Case brief

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Chandradev Dakshini Singh v. Smt. Sulochana Tukaram Kochare and Ors.

Case brief

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What did the court decide?

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