RAJESHKUMAR INDRAJIT HANSORA Vs. MANEKLAL SANKALCHAND SHAH

JUDGEMENT

(1.) PETITIONER is aggrieved by the order dated 27 th May, 2008 passed by learned Additional District Judge, Gandhidham, Kutchh below Exhs. 18 and 19 in Regular Civil Appeal No. 25 of 2007, whereby, the prayer for production of additional evidence under Order 41 Rule 27 of Civil Procedure Code ( for short "CPC" )came to be declined.

(2.) LEARNED counsel for the petitioner contended that the findings of the trial Court that the tenant-petitioner was in arrears of rent for a period of more than six months was rendered in absence of necessary documents sought to be produced showing tender of rent. That such finding was rendered after oral refusal by the trial Court to accept the said documents. It was contended that Regular Civil Appeal aforesaid, was preferred, challenging the judgement and decree of eviction on various grounds and during the course of hearing of the appeal, Application Exhs. 18 and 19 came to be tendered making an averment that the petitioner was prevented by the learned trial Judge from producing relevant documents, and thus, the jurisdiction of the Appellate Court was invocable under Order 41 Rule 27 CPC; more particularly, clause (a) and (b) thereof, enabling the Appellate Court to allow additional evidence. In his submissions, the trial Court had refused to accept the documents orally and no order as such was passed in writing, thus, preventing the petitioner to move the higher forum and consequently, findings rendered by the lower appellate Court that since the production of the documents was not rejected, powers under clause (a) above were not exercisable, was illegal. It was also contended that the documents sought to be produced were substantial enough to influence the judgement of the trial Court on the issue of arrears of rent, in as much as, tax liability was upon the tenant and since tax was payable annually, the tenancy was not monthly and therefore ground under section 12(3)(a) was not available to the respondent- landlord, and therefore, the question as to whether the petitioner was in arrears of rent as required under section 12(3)(a) of the Bombay Rent Act was possible to be decided only after taking into consideration the documents in question showing that the rent was paid by the petitioner. In his submission therefore, it was incumbent upon the trial Court to require production of the documents under Clause (b) of sub-rule 1 of Rule 27 of Order 41 and the lower appellate Court having failed to exercise such powers, this is a fit case for this Court to exercise the powers under Article 227 of the Constitution of India.

(3.) IN support of the above contentions, learned counsel relied upon the following cases :