Bombay High Court
Shiv S/O Harikisan Agarwal vs Kalpana Wd/O Renukadas Rajurkar ... on 29 March, 2023
Bench: Avinash G. Gharote
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1995/2023
Shiv s/o Harikisan Agarwal Vs. Kalpana wd/o Renukadas Rajurkar & Anr.
Office Notes, Office Memoranda Court's or Judge's orders
of Coram, Appearances, Court's
orders or directions and
Registrar's orders
Mr. D.J. Sindhu, Advocate for petitioner
Mr. Masood Shareef, Advocate for Respondents
CORAM: AVINASH G. GHAROTE, J.
DATED : 29th MARCH, 2023
Heard Mr. Sindhu, learned counsel for the
petitioner and Mr. Shareef, learned counsel for the
respondents.
2. The petition questions the order dated
02/03/2023, whereby the application at Exh.26 filed
by the petitioner / appellant, for placing the
documents on record has been rejected on the count
that it does not satisfy the requirement of Order 41
Rule 27 of the Code of Civil Procedure (CPC) and
also considering the position, that the application
was filed at the stage when the matter was fixed for
final arguments in appeal.
3. Mr. Sindhu, learned counsel for the
petitioner / appellant / tenant submits, that the
documents in question, are certified copies of the
sanctioned building plans of the premises in
question, which have a relevant bearing upon the
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issue as to whether the premises were let out for
residential or commercial purpose as there is a
dispute in that regard between the parties hereto
and therefore, there is a need for them to be
permitted to be placed on record.
4. Mr. Shareef, learned counsel for the
respondent / landlord submits, that there is a
categorical admission in the written statement of the
petitioner / tenant itself that the premises were let
out for commercial purpose as is reflected from the
averements in para 4 page 136-137 and therefore,
once the parties have proceeded to trial with the
aforesaid position, the question of permitting to file
the documents on record at the stage of final
arguments in appeal does not arise at all, apart from
which requirement of Order 41 Rule 27 of CPC does
not stand complied with.
5. The petitioner is the tenant and the
respondents are the landlords. The learned trial
Court, has granted a decree for eviction on
28/7/2020, in a suit filed in the year 2010. The
appeal was fixed for final arguments when the
application at Exh.26 came to be filed. It is also
material to note that this Court by the order dated
19/8/2022, while disposing of Writ Petition
No.5002/2022, has specifically directed the
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appellate Court to dispose of the appeal in any case
within a period of six months from the date of the
judgment. That apart, it is material to note, that the
documents which are now being sought to be
produced on record are of the years 1980 and 1991.
Access to these documents, was clearly available to
the petitioner / tenant, in case he wanted to rely
upon them to contend that the premises were let out
for the residential purpose, inspite of the plea raised
in the written statement that the tenancy was for a
commercial purpose. This, however, has not been
done during entire course of the trial nor for the
period of 10 years and more when the appeal was
pending. A perusal of the application at Exh.26, also
does not demonstrate the satisfaction of the
requirement of Order 41 Rule 27 of CPC, as it
merely states, that while preparing the case for final
arguments, the requirement of the sanction plan in
respect of suit property was felt necessary. In that
view of the matter, I am not inclined to interfere in
the impugned order, rejecting the application at
Exh.26.
6. Needless to say, that the learned appellate
Court was expected to comply with the directions
that contained in the order dated 28/2/2022, as
passed in Writ Petition No.5002/2022, however,
since that period stands expired on 28/3/2023, the
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appeal shall be finally decided within a period of 15
days from today.
JUDGE
MP Deshpande
