Usha Devi Vedprakash Pandey v. Dena Bank And ORS

Arun Sankpal

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 239 OF 2025 Usha Devi Vedprakash Pandey ..Petitioner

Versus

Dena Bank & Ors

...Respondents

by ARUN RAMCHANDRA SANKPAL Date:

2025.06.23 19:57:15 +0530 ARUN RAMCHANDRA SANKPAL Mr. Rajesh Singh, with Iftekhar Sayed, for the Petitioner.

CORAM:

N. J. JAMADAR, J.

DATED :

20th JUNE 2025 ORAL ORDER :

1.

Heard the learned Counsel for the Petitioner. 2.

The challenge in this Petition is to an order dated 9th October 2024, passed by the Appellate Bench of the Court of Small Causes, on an Application (Exhibit "30") seeking review and recall of the order dated 14th August 2024 passed on an Application (Exhibit "26"). 3.

By the said Application (Exhibit "26") the Petitioner-Appellant sought permission to produce additional evidence under the provisions of Order XLI Rule 27 of the Code of Civil Procedure 1908 ("the Code") so as to place on record the documents to show that, the Respondents have resorted to parallel proceeding for eviction before the competent authority under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971.

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4.

Initially, by an order dated 14th August 2024, the Appellate Bench directed that the said Application be heard and decided along with the Appeal finally. The Petitioner took out the Application seeking recall of the said order asserting, inter alia, that the said order was passed without hearing the Appellant.

5.

By the impugned order the Appellate Bench reheard the matter and ruled that, the order directing that the Application for additional evidence would be heard along with the Appeal, did not require any modification, and the said application would be heard along with the Appeal.

6.

The Appellate Bench held that, the additional evidence sought to be produced is of a such nature that, the Application was required to be decided along with the Appeal in view of the pronouncement of the Supreme Court in the case of Union of India Vs Ibrahimuddin.1 7.

Mr. Singh, the learned Counsel for the Petitioner, submitted that though the Appellate Bench considered the matter on merits while deciding the Application for recall, the necessity of the additional evidence was not properly appreciated. According to Mr. Singh, the evidence sought to be adduced by the Petitioner-Appellant is such that, the Application for adducing additional evidence ought to be decided before the final hearing of the Appeal.

(2012) 8 SCC 148.

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8.

It is not the case that the Trial Court has refused to admit the evidence which was sought to be tendered along with Application. Nor the case falls within the ambit of Clause (aa) of Rule 27(1) of Order XLI of the Code. The additional evidence is essentially of such nature that the prayer to addcue the same falls within the ambit of Clause (b). If the case falls under Clause (b), the true test, as enunciated by the Supreme Court in the case of Ibrahimuddin (Supra) is, whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.

9.

In that view of the matter, the Appellate Bench has taken a correct view and ruled that, the Application for adducing additional evidence would be considered at the stage of hearing of Appeal. Thus no interference is warranted in exercise of writ jurisdiction. 10.

The Petition stands dismissed.

11.

At this stage, the learned Counsel for the Petitioner seeks leave to amend the Appeal Memo so as to incorporate additional grounds. 12.

In the event such an Application is filed, the Appellate Bench shall consider the same on its own merits and in accordance with law. [N. J. JAMADAR, J.] 3/3