RADHABEN KRISHNADAS PATHAK Vs. MUGATLAL CHHOTALAL OZA

JUDGEMENT

(1.) The petitioners have questioned the order passed below Ex. 31 in Civil Appeal No. 170 of 1984 by the Appellate Bench of Small Causes Court, Ahmedabad on 1-4-1996 whereby the application for production of additional evidence during the pendency of the appeal came to be rejected, by invoking the aids of the provisions of S.115 of the Code of Civil Procedure, 1908 (Code).

(2.) The petitioners are the original plaintiffs-landlords and the respondent is the original defendant-tenant. They are hereinafter referred to as the landlords and tenant for the sake of convenience and brevity. The landlords instituted H.R.P. Suit No. 3582 of 1980 in the Court of Small Causes, Ahmedabad against the tenant on following grounds under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act) : (1) arrears of rent; (2) reasonable and bona fide personal requirement; and (3) acquisition of suitable residential accommodation. The trial Court accepted the fact of tenant having acquired accommodation, but did not consider it to be suitable. Therefore, the suit came to be dismissed on that ground along with other grounds. The landlords, therefore, preferred aforesaid appeal which is pending. During the pendency of the appeal, the demise premises came to be transferred by the original plaintiff to petitioner Nos. 2 and 3. The petitioners original appellants in the pending appeal submitted an application Ex. 31 on 12-12-1995 contending that the tenant has acquired suitable residential accommodation and therefore, it was necessary to lead additional evidence during the pendency of the appeal. The Appellate Bench rejected the said application submitted under Order 41 Rule 27 of the Code. Order 41 Rule 27 of the Code empowers the Court to permit production of additional evidence in the Appellate Court on the grounds stated therein. The provisions of Order 41 Rule 27 of the Code read as under :

(3.) The Lower Appellate Court rejected the application Ex. 31 mainly on the ground that the additional evidence sought to be produced during the pendency of appeal in connection with the right to claim possession of the demise premises under S.13(1)(1) of the Bombay Rent Act has already been made one of the grounds in another suit No. 2359 of 1992. Secondly, the Appellate Court rejected the application Ex. 31 on the ground that the newly purchasers after being impleaded as appellants had given three applications in appeal, Exhs. 14, 16 and 18. Ex. 14 was an application for additional evidence in respect of the alleged newly acquired premises by the tenant. Application Ex. 16 was for production of documents by a witness summons and application Ex. 18 was an application to appoint Commissioner to make panchnama of the demise premises. These three applications, admittedly, have been rejected by the Appellate Bench mainly on the ground that the new purchasers, namely, the petitioner Nos. 2 and 3, have already instituted another suit No. 2359 of 1992 in the trial Court alleging the same fact about the suitable acquisition of residence by the tenant. Therefore, the Appellate Bench observed that application Ex. 32 is nothing but one more attempt made by the landlord to lead further additional evidence in the matter and in respect of alleged acquired premises. Thirdly, the Appellate Bench has also observed that the new purchasers should not be allowed to collect the evidence for the suit in the appeal.