Frenchman Vs. Sardar Dastur Schools Trust & Ors  Insc 101 (14 February 2005)
Mathur & P.P. Naolekar
out of SLP (C) No. 18057 of 2002) P.P. Naolekar, J
Third Additional District Judge, Pune, seized of hearing a first appeal,
allowed an application under Rule 27 of Order 41 of the Code of Civil
Procedure, 1908 (hereinafter 'the Code' for short) seeking production of four
documents in additional evidence. The High Court has, by its impugned order passed
in exercise of revisional jurisdiction under Section 115 of the Code, set aside
the order of the first appellate court.
is a landlord-tenant suit in which the eviction of the tenant is sought for
under Section 13 of the Bombay Rents, Hotel and Lodging Houses Rates Control
Act, 1947 on several grounds, namely, that the landlord reasonably and bona
fide require the premises for occupation by himself, that the tenant had,
without the landlord's consent, erected on the premises a permanent structure and
that the tenant had changed the user of the tenancy premises by conducting the
coaching classes therefrom.
trial court decreed the suit and directed the tenant- appellant to be ejected
but only on the ground of reasonable and bona fide requirement of the landlord.
The availability of other grounds for ejectment was held not to have been made
out. The tenant preferred the first appeal. During the pendency of the appeal,
tenant moved an application under Order 41 Rule 27 of the Code seeking
permission to lead additional evidence by way of production of documents, on
the ground that the said documents were not available during trial before the
trial court and that the said documents were necessary for the just and fair
decision on the issues involved in the case. The documents sought to be
produced are :
between landlord and M/s. Godrej Boyce Co. Ltd. indicating negotiation for sale
or use of suit premises for a showroom by the Company;
plan for construction of building submitted before the authorities by the
landlords in May 1998 after the judgment passed by the trial court wherefrom it
appears that the landlord does not wish to demolish the super-structure to put
up the new construction;
Public Brochure issued by the landlords inviting donation and funds for
construction, indicating lack of funds for construction with the landlord. As
per the tenant, document
was not available to the tenant in spite of due diligence and documents (b) and
(c) are the documents which came into existence after the trial court passed
its judgment on 29.1.1999.
first appellate court allowed the application holding inter alia that the
tenants were not parties to the correspondence between the landlord and M/s. Godrej
& Boyce Co. Ltd. and the fact of such negotiations had been denied by the
landlords and that they could not have earlier obtained the knowledge of the
document in spite of due diligence. The Court has also held that the documents
are necessary for a just decision of the case.
High Court has, while setting aside the order of the first appellate court,
held that the tenant-defendant (appellant in the first appeal) had failed to
establish that notwithstanding the exercise of due diligence, such evidence was
not within his knowledge or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed against was passed.
(b) of sub-section (1) of Section 107 of the Code empowers an appellate court
to take additional evidence. Rule 27 of Order 41 provides for the grounds on
the availability of which alone, the parties to an appeal may be allowed to
produce additional evidence.
decree of the trial court is based on the landlords' bona fide requirement of
the accommodation. In appeal, the question before the Court for adjudication is
whether the trial court was justified in passing the decree in favour of the
landlords on the ground of bona fide need and the tenants obviously are within
their rights to show that the need of the landlords is not genuine. The
evidence produced in that direction would be relevant for the purpose of
adjudicating the Mahesh Chand Gupta (1999) 6 SCC 222, this Court has held that
a bona fide requirement must be an outcome of a sincere and honest desire in
contra-distinction with a mere pretext for evicting the tenant on the part of
the landlord claiming to occupy the premises for himself or for any member of
the family which would entitle the landlord to seek ejectment of the tenant.
The question to be asked by a Judge of facts by placing himself in the place of
the landlord is whether in the given facts proved by the material on record the
need to occupy the premises can be said to be natural, real, sincere and
honest. The concept of bona fide need or genuine requirement needs a practical
approach Lal (2001) 5 SCC 705, this Court reiterated that bona fide requirement
has to be distinguished from a mere whim or fanciful desire. The bona fide
requirement is in praesenti and must be manifested in actual need so as to
convince the Court that it is not a mere fanciful or whimsical desire.
cannot be denied that the documents sought to be produced by the tenants are
material and if substantiated, would have a material effect on the case of the
landlords of their bona fide need of the suit premises. If, in fact, the
landlord has entered into negotiations with M/s. Godrej Boyce Co. Ltd. for
selling or use by them of the property, the need cannot be said to be genuine.
Similarly, a change in the construction plan may show that the alleged need of
the landlord for the construction may not be genuine. The third document
proposes to demolish the case of availability of the funds for construction
with the landlord. Two of the documents came into existence after the passing
of the decree by the trial court. Similarly, the correspondence entered into by
the landlord with a third party could not have been within the knowledge of the
tenant and therefore, the tenants' statement that the documents could not have
been produced before the trial court, in spite of the exercise of due
diligence, was highly probable. In such circumstances, the High Court was not
justified in interfering with the discretion exercised by the first appellate
court permitting additional evidence.
the foregoing reasons, the appeal is allowed. The impugned order of the High
Court dated 13.6.2002 is set aside.
order of the Third Additional District Judge, Pune, dated 5.1.2000, allowing
the defendant-appellant's application dated 20.11.1999 under Order 41 Rule 27
of the Code is restored.
order as to the costs.