1 wp3404.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION No. 3404 OF 2009 Shivagopal S/o Balkishan Pathak, Age : 67 years, Occ : Agril., R/o Kranti Chowk, Parbhani. ..PETITIONER -VERSUS- 1. Sant Kashivishwanath Baba Died hence deleted as per order dated 16.01.2008 passed by Dist. Court at Parbhani. 2. Rampyaribai W/o Ramprasad Tiwari, Age : 62 years, Occ : Household, R/o Badod Kanoba, Tq. Khultabad, Dist. Aurangabad 3. Tarabai W/o Vijaykumar Pande, Age : 58 years, Occ : Household, R/o Dharur, Tq. Kaij, Dist. Beed. 4. Suraj Prasad S/o Vidyaprasad Shukla, Age : 50 years, Occ : Nil, R/o Kranti Chowk, Parbhani. 5. Prakash S/o Vidya Prasad, Age : 45 years, Occ : Nil., R/o As above. 6. Shamsunder S/o Vidya Prasad, Age : 42 years, Occ : Nil, R/o As above. 7. Kamlabai W/o Subhash Age : 48 years, Occ : Nil, R/o Dharur, Tq. Kaij, Dist. Beed. 8. Vimla d/o Vidya Prasad, Age : 40 years, Occ : Nil, R/o Kranti Chowk, Parbhani. 9. Prema d/o Vidya Prasad, Age : 32 years, Occ : Nil, R/o As above. 2 wp3404.09 10. Sopal S/o Dhondiram Deshmukh, Age : 70 yars, Occ : Agril., R/o Bhogaon, Tq. Jintur, Dist. Parbhani. 11. Suresh S/o Sakharam Deshmukh, Age : 50 years, Occ : Agril., R/o Kranti Chowk, Parbhani. ..RESPONDENTS ...... Shri S.S. Rathi, advocate for the petitioner Shri. A.R. Nikam, advocate for respondent no.11. ...... CORAM : S.V. GANGAPURWALA, J. DATE : 5th September, 2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. The notice was also issued to the respondents that the matter would be heard finally. 2. The petitioner is the original plaintiff, who filed the suit for declaration and injunction. The said suit came to be dismissed. Aggrieved thereby, the plaintiff filed appeal. Same is pending before District Court. During pendency of the appeal, the petitioner filed an application under Order 41 Rule 27 of the Code of Civil Procedure seeking production of additional evidence by way of documents. The said application is rejected. Aggrieved thereby, the present Petition is filed. 3 wp3404.09 2. The learned counsel for the petitioner submits that the said documents were relevant for the effective adjudication of the dispute. The District Court has not considered this aspect and only on the ground that the same were not produced earlier, the said application came to be dismissed. According to the learned counsel, the application for production of additional evidence should be decided at the time when the appeal is heard on merits and not prior to that. For the said purpose the learned counsel relies on the judgments of the Apex Court in the case of "State of Rajasthan V/s T.N. Sahani and others", reported in "(2001)10 S.C.C. 619" and in the case of "Malyalam Plantations Ltd., V/s State of Kerala and another" reported in "2001 AIR SCW 264" 3. Shri Nikam, the learned counsel for the respondent no.11 submits that the District Court has considered all the facet of the matter and thereby has rightly rejected the application under Order 41 Rule 27 of the Code of Civil Procedure. The said documents were within the knowledge of the petitioner and still were not produced before the trial Court. There is no reason to allow the production of documents before the appellate Court. Same would prejudicial to the interest of the respondent and also same would amount to fill in the latches. 4 wp3404.09 4. The Apex Court in the case of State of Rajasthan V/s T.N. Sahani and in the case of Malayalam Plantations Ltd., V/s State of Kerala and another referred supra has held that the application for additional evidence has to be considered by the appellate Court at the time of hearing appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. 5. In the light of the above, the impugned order is quashed and set aside only on the ground that the said application is required to be considered at the time of hearing appeal on merits. I have not considered any of other arguments of the respective counsel and other points raised by the respective counsel. The same are kept open. 6. The Writ Petition is allowed. The Rule is accordingly made absolute by quashing and setting aside the impugned order. The appellate Court shall consider the said application filed by the petitioner under Order 41 Rule 27 of the Code of Civil Procedure on its own merits at the time of hearing of the appeal. No costs. [S.V. GANGAPURWALA] JUDGE ga s/wp 3404.09