1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4346 OF 2008 Narayandas Kaluram Gudniye, Dined through its Assignee Yogesh Shashikant Patwari R/o. R.P. Road, Jalna PETITIONER VERSUS 1. Shankarrao Baburao Thorat 2. Subhash Madhavrao Thorat 3. Prakash Baburao Thorat, All R/o Modikhana, Jalna RESPONDENTS ....... Mr.A.S.Bajaj, Advocate for the petitioner Mr.M.M.Patil (Beedkar), Advocate for the respondent No.1 ....... [CORAM : A.V.POTDAR, J.] DATE : 11 th June 2009 ORAL JUDGMENT: 1. By the present petition, filed under Article 227 of the Constitution of India, the petitioner, decree holder in Special Darkhast No.11/1983 on the file of Civil Judge, Senior Division, Jalna, has challenged the order dated 10.04.2005 passed below Exhibit-331. 2 2. Rule. Rule made returnable forthwith. Considering the small point involved in the petition, with the consent of the parties, heard finally at the stage of admission itself. 3. The facts, which gave rise to file the present writ petition can be summarized as under - The petitioner has purchased the suit property, subject matter of Special Darkhast No.11/1983, from the original decree holder, under the registered sale deed dated 21.06.2001. After the execution of the registered sale deed and after goring through the contents thereof the present petitioner realized that by mistake or inadvertently the right to execute the decree and the powers therein remained to be mentioned in the said registered sale deed. Therefore, rectification deed was executed on 08.08.2001 between the present petitioner and the original decree holder. Later on, the present petitioner filed an application before the executing court to implede him as a party decree holder in the shoes of original decree holder, as the rights to execute the decree are assigned to him. This application came to be allowed vide order dated 15.12.2001 passed below Exhibit-122, 119 and 126. The respondents have objected the execution of decree under Order 21 rule 97. At the time, when the petitioner was allowed to be join in the 3 execution petition, as a decree holder, he has filed on record certified copies of registered sale deed as well as registered deed of rectification. From the submissions across the bar, it appears that inadvertently, while leading oral evidence before the Court, only the registered sale deed was tendered in evidence, however the rectification deed was not tendered. Hence, after the cross examination of the petitioner was over, an application was moved below Exhibit-321 for production of original rectification deed on record, which came to be rejected and the said order is under challenge. 4. During the course of arguments it was urged that as the certified copy of the said rectification deed was already on record then production of original rectification deed, which was inadvertently remained to be tendered during oral evidence, will not amount to lead additional evidence, but it will be removal of technical defect, as the secondary evidence is only allowed when the primary evidence is not available. It is also to be noted that when the decree holder / petitioner was allowed to join in the execution petition as decree holder, he has already produced on record C.C. Of the original registered sale deed as well as certified copy of registered rectification deed. In the premise, production of the original rectification deed would not amount to lead a new evidence and it cannot be said that there is no knowledge of this document to the respondent, who is objection petitioner in the trial court. In the premise, the order passed by the learned trial court 4 to be set aside. As against this, advocate for the respondent drawn my attention towards the cross examination of the witness of decree holder wherein certain admissions are given by the said witness. Therefore, now, to allow the production of the rectification deed will amount to prejudice to the admissions given by the witness of the decree holder. 5. During the course of submissions, my attention is drawn towards the provisions of Order 18 Rule 17-A of the Code of Civil Procedure, which is now deleted and as that rule is now deleted, according to the respondent, the petitioner was rightly precluded by the trial court from production of this document. Reference is given by the trial court of the judgment “Salem Advocate Bar Association Tamil Nadu V/s Union of India” 2005 (3) CCC, 420. The ratio given in the ruling has to be read as a whole and not in part. In the said judgment it is observed that even though sub rule 17-A from Order 18 of the Civil Procedure Code is deleted that does not mean that the party is not entitled to produce evidence at a later stage. The party may lead evidence with a rider to the subjective satisfaction of the court that as to why the party was unable to lead evidence at earlier stage. 6. From bare perusal of the ratio laid down in the judgment, referred supra, it is clear that there is no hurdle to allow 5 production of documents to the decree holder, subject to the subjective satisfaction of the Court as to why the document was not produced at earlier stage. Here, it is not the case of non production of document, as already certified copy of the document was on record, however inadvertently, at the time of oral evidence, original document remained to be tendered. In the premise, this is not a case of leading additional evidence after earlier evidence is over. Therefore, the lower court must not be too technical, when the certified copy of the document was already on record, to reject the application to produce the original document on record. In the premise, the order passed below Exhibit-321, requires to be quashed and set aside. Accordingly, order dated 10.04.2008, passed below Exhibit-321 in Special Darkhast No.11/1983 is hereby quashed and set aside. Rule made absolute on the terms indicated above. Writ petition stands disposed of with no order as to costs. [A.V.POTDAR, J.] drp/wp4346-08