Ganeshlal Babulal Jain vs J. N. Pokar (Jitendra Narayan Pokar)
2024 Latest Caselaw 24599 Bom

Bombay High Court

Ganeshlal Babulal Jain vs J. N. Pokar (Jitendra Narayan Pokar) on 21 August, 2024

2024:BHC-AS:33630
                        Sonali Mane                                                                   909-CRA-277-2023.docx



                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                  CIVIL APPELLATE JURISDICTION


                                       CIVIL REVISION APPLICATION NO. 277 OF 2023


                        Ganeshlal Babulal Jain                                                ... Applicant
                                 Versus
                        J. N. Pokar (Jitendra Narayan Pokar)                                  ... Respondent



                        Mr. Bharat Kothari a/w Mr. Ashok Varma & Mr. Vinit Jain for the Applicant.
                        Mr. Sheelong Shah a/w Nirmal Chopda i/b Vraj Legal for Respondent.



                                                               CORAM         : SANDEEP V. MARNE, J.

                                                               DATE          : 21 AUGUST 2024.
                        P.C. :


                        1)               This Civil Revision Application is filed challenging the Decree

dated 10 August 2021 passed by Appellate Bench of Small Causes Court by which Appeal No. 243 of 2006 filed by the Revision Applicant has been dismissed. It appears that the Revision Applicant had filed Application at Exhibit 65 under provisions of Order 41 Rule 27 the Code of Civil Procedure, 1908 seeking to produce additional evidence in the form of power of attorney executed by the Landlord in favour of the developer and consent terms entered into by the developer with the Revision Applicant. It appears that by Order dated 2 April 2019, the Appellate Bench partly allowed Application at Exhibit 65 and directed that the additional evidence can be considered in view of Order 41 Rule 27 of the Code while hearing the main Digitally signed by MANE MANE SONALI ___Page No.1 of 3___ SONALI DILIP DILIP Date:

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Sonali Mane 909-CRA-277-2023.docx

Appeal. It appears that, the Plaintiff had also filed similar application under Order 41 Rule 27 of the Code at Exhibit 70 for production of additional evidence. While passing the final decree dated 10 August 2021, the Appellate Bench has considered the application filed by the Plaintiff for production of additional evidence at Exhibit 70 and has refused to take into consideration the said additional evidence. Accordingly, the application at Exhibit 70 has been rejected. However, perusal of the judgment of the Appellate Bench indicates that the additional evidence in the form of application at Exhibit 65, which was directed to be considered at the time of final hearing of the Appeal has not at all been taken into consideration by the Appellate Bench.

In fact when an application for review was filed by the Revision Applicant, the Appellate Bench has acknowledged this error on its part in altogether ignoring the evidence sought to be produced alongwith application at Exhibit

65. Despite acknowledging a patent error on its part, the Appellate Bench has still proceeded to dismiss the Review Application.

2) In my view, the documents sought to be placed on record alongwith application at Exhibit 65 not only has material bearing on the dispute between the parties, there is otherwise a clear error on the part of the Appellate Bench in ignoring the additional evidence despite partly allowing the application at Exhibit 65 vide Order dated 2 April 2019. The original landlord executed power of attorney in favour of the developer, which inter alia included power to settle the disputes with the tenants. Based on such power of attorney, the developer thought it appropriate to settle the disputes with the Revision Applicant and has decided to grant him permanent alternate accommodation by recognizing the claim of tenancy. Therefore, the subsequent events in the form of execution of power of attorney with the

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developer and developer filing consent terms with the revision applicant do have material bearing of the dispute between the original landlord and the revision applicant. Even otherwise, having promised that the additional evidence sought to be produced alongwith Exhibit 65 would be considered while deciding the Appeal finally, the Appellate Bench could not have ignored the said evidence while finally deciding the Appeal. This gross error committed by the Appellate Bench is acknowledged by it while dealing with Review Application. However instead of correcting the error, the Appellate Bench has erroneously proceeded to dismiss the Review Application, which has unnecessarily necessitated filing of present Revision Application before this Court. Having acknowledged of patent error committed by the Appellate Bench, it was its duty to correct the same by allowing the Review Application.

3) In my view, therefore, the Decree dated 10 August 2021 passed by the Appellate Bench suffers from a palpable error warranting interference by this Court in exercise of a revisionary jurisdiction under Section 115 of the Code. Accordingly, the Decree dated 10 August 2021 passed by the Appellate Bench is set aside. Appeal No. 243 of 2006 shall stand restored on the file of the Appellate Bench to be heard and decided afresh by taking into consideration the additional evidence produced vide application at Exhibit

65.

4) With the above directions, the Civil Revision Application is allowed and disposed of.

[SANDEEP V. MARNE, J.]

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