Hemant Radhakrishna Sapale vs Vyankatesh Devidas… — Writ and Judicial Review | Bombay HC (2026)

Hemant Radhakrishna Sapale vs Vyankatesh Devidas… — Writ and Judicial Review | Bombay HC (2026)

What the court decided

AI extract

Outcome

Order dated 5th August, 2021 below Exhibit 136 quashed and set aside and the application below Exhibit 136 allowed; order dated 9th August, 2021 below Exhibit 144 set aside as infructuous; challenge to order dated 21st September, 2021 dismissed; challenge to order dated 1st October, 2021 deemed not pressed; Writ Petition disposed of accordingly.

Issue for consideration

Whether the Trial Court rightly rejected the application below Exhibit 136 seeking issuance of witness summons to the Plaintiff's sister for proving bona fide requirement, given its view that she had relinquished her share in the suit premises. +3 more

Court's answer

The question whether the Plaintiff's sister had relinquished her share is wholly irrelevant to examining her in order to substantiate the Plaintiff's case of bona fide requirement.

Ratio / Principle

The order dated 5th August, 2021 passed below Exhibit 136 in R.A.E. & R. Suit No. 2185 of 1980 is quashed and set aside, and the application below Exhibit 136 stands allowed.

Key takeaways

In view of Exhibit 136 being allowed, nothing survives in the application below Exhibit 144; the order dated 9th August, 2021 passed below Exhibit 144 is set aside as the said application has become infructuous.ratio¶28
No interference is warranted with the order dated 21st September, 2021; the Writ Petition is dismissed to the extent it challenges that order.ratio¶29
Since no submissions were made with respect to the order dated 1st October, 2021 passed below Exhibit 220, the challenge to that order is deemed not pressed.

Detailed headnote1 paragraphs

Writ Petition under Article 227 of the Constitution of India against four interlocutory orders of the learned Judge, Small Causes Court, Bandra Branch, Mumbai in R.A.E. & R. Suit No. 2185 of 1980. Held: (i) the order dated 5th August, 2021 below Exhibit 136 rejecting the Plaintiff's application for issuance of witness summons to his sister for proving bona fide requirement is quashed and set aside and the application allowed, since whether the sister had relinquished her share in the suit premises is wholly irrelevant to substantiating the case of bona fide requirement; (ii) consequently, the order dated 9th August, 2021 below Exhibit 144 rejecting recall of the Exhibit 136 order is set aside, the recall application having become infructuous; (iii) no interference is warranted with the order dated 21st September, 2021 below Exhibit 213 refusing permission to lead secondary evidence under Section 65 of the Indian Evidence Act, 1872 for documents marked Article X, X/1 and X/2, the Petitioner having failed to establish evidence of the existence of the originals, and the challenge to that order is dismissed; and (iv) the challenge to the order dated 1st October, 2021 below Exhibit 220 is deemed not pressed as no submissions were made. Writ Petition disposed of in the aforesaid terms.

36-WP-2329-2024.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 2329 OF 2024

Hemant Radhakrishna Sapale …Petitioner Versus

Digitally signed by SHRADDHA SHRADDHA KAMLESH KAMLESH TALEKAR TALEKAR Date: 2026.02.03 20:43:10 +0530

Vyankatesh Devidas Kamat and Ors …Respondents

Mr. Omkar Nagwekar, for Petitioner.

None for Respondents.

CORAM : MADHAV J. JAMDAR, J. Date : 2^nd February, 2026

PC :

Heard Mr. Nagwekar, Learned Counsel appearing for the

Petitioner. Though served, none appears for the Respondents.

By the present Writ Petition filed under Article 227 of the Constitution of India, the Petitioner challenges the legality and validity of the following orders passed by the Learned Judge, Small Causes

Court, Bandra Branch, Mumbai in R.A.E. & R. Suit No. 2185 of 1980:

(i) Order dated 5^th August, 2021 passed below Exhibit 136;

(ii) Order dated 9^th August, 2021 passed below Exhibit 144;

(iii) Order dated 21^st September, 2021 passed below Exhibit 213; and

(iv) Order dated 1^st October, 2021 passed below Exhibit 220.

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Shraddha

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By the order dated 5^th August, 2021, the Learned Trial Court rejected the application below Exhibit 136 seeking issuance of witness summons to the sister of the Plaintiff for proving the case of bona fide requirement. The Learned Trial Court held that since the sister had relinquished her share in the suit premises, no useful purpose would be served by issuance of summons to her.

By the impugned order dated 9^th August, 2021, the application below Exhibit 144 seeking recall of the order dated 5^th August, 2021 came to be rejected.

Upon perusal of the record, it is evident that the Petitioner– Plaintiff intended to examine his sisters in order to substantiate his case of bona fide requirement. The question whether the sister had relinquished her share is wholly irrelevant for the said purpose. Accordingly, the order dated 5^th August, 2021 passed below Exhibit 136 in R.A.E. & R. Suit No. 2185 of 1980 is quashed and set aside, and the application below Exhibit 136 stands allowed.

In view of the above order allowing Exhibit 136, nothing survives in the application below Exhibit 144, as the same was filed seeking recall of the order passed below Exhibit 136. Consequently, the Page 2 of 4 2^nd February, 2026

Shraddha

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order dated 9^th August, 2021 passed below Exhibit 144 is also set aside, as the said application has become infructuous.

As regards the order dated 21^st September, 2021, the record indicates that the documents produced along with the affidavit of evidence were marked as Article X, X/1 and X/2. The Learned Trial Court rejected the said application on the ground that for exercising jurisdiction under Section 65 of the Indian Evidence Act, 1872 and for permitting secondary evidence, there must be some evidence regarding the existence of the original documents, which the Petitioner has failed to establish. In the facts and circumstances of the case, no interference is warranted with the order dated 21^st September, 2021. The Writ Petition, to the extent it challenges the said order, stands dismissed .

Although, in the Writ Petition, order dated 1^st October, 2021 passed below Exhibit 220 is also challenged, no submissions are made with respect of the same. Therefore, it is deemed that the challenge to that order is not pressed too.

It is accordingly clarified that the challenge to the orders dated 5^th August, 2021 and 9^th August, 2021 stands allowed in the

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Shraddha

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aforesaid terms, whereas the challenge to the order dated 21^st September, 2021 stands dismissed.

The Writ Petition is disposed of in the aforesaid terms.

[ MADHAV J. JAMDAR, J.]

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Shraddha