1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6161 OF 2009 SURYAKANT S/O. KARBHARI DETHE AND OTHERS ..Petitioners VERSUS KARBHARI S/O. SONAJI DETHE (DECEASED) AND ANR. ..Respondents ... Shri P.D.Suryawanshi, Advocate for the petitioners. Respondents : Served - absent. ... CORAM : S.B.DESHMUKH,J. Dated : 26.2.2010 PER COURT :- 1. Heard learned counsel for the petitioners. Respondents are absent, though served. 2. Petitioners are plaintiffs in RCS No.109 of 1994. Said suit for partition and separate possession was dismissed by the trial court on 31.1.2001. Petitioners have filed an application under XLI Rule 27 of the Code of Civil Procedure ("CPC") on 25.2.2009 seeking production of the documents. Two documents were sought to be produced by the said application, namely; voters' list pointing out the relationship amongst the parties and heirship certificate. 2 3. Reply of the present respondents in on record with the first appellate Court. In the reply, it has been contended that the application does not show that the documents were not available at the time of evidence before the trial court and production of it was beyond the control of the petitioners. Further, it has been contended that the copy of the voters' list is not certified and not obtained from the office of Tahsildar so also first page of the same is crossed. According to respondents, second document i.e. heirship certificate has been obtained in collusion with the concerned officers and that it was easily available at the time of recording of the evidence before the trial Court. 4. The learned Court below while rejecting the application, in paragraph No.3 recorded the submissions of the parties. In paragraph No. 4, first appellate Court has made some observations pertaining to the voters' list. The first appellate Court did not believe the document in absence of the initials of the competent authority since the document appears to have been scored. The first appellate Court further observed that the voters' list was published on 1.1.2008 and application was filed on 25.2.2009. The delay is not properly explained. Therefore, this document was not permitted. Second document - heirship certificate - is issued by the concerned authority on 21.2.2008. Application for production of the same is filed on 25.2.2009. There is no explanation for delay. Therefore, this 3 document has also been refused to be accepted. 5. Production of additional evidence is a matter governed by the provisions of Order XLI Rule 27 of CPC. Cut off date is the date of passing of the decree passed by the trial Court. Availability of the documents before that date and due diligence or otherwise is material in relation to the date of decree passed by the trial Court. In the case on hand, the decree dismissing the suit was passed by the trial Court on 31.1.2001. Voters' list as mentioned by the first appellate Court was published on 1.8.2008. It is beyond imagination how the petitioners were in a position to produce such voters' list before passing of the decree by the trial court. Second is heirship certificate, allegedly issued on 21.2.2008 i.e. around seven years after passing of the decree by the trial Court. The first appellate Court entered the merits of the documents. Probative value of the document is a different aspect of the matter. The first appellate Court was dealing with only the point of production of the document at the relevant time. The order impugned is perverse. The jurisdiction vested with the first appellate Court seems to have not been properly exercised. Since it is a case of jurisdictional error and perversity, I am inclined to allow this Petition. 6. In the result, Writ Petition is allowed. Impugned order is quashed and set aside. No order as to costs. Since the appeal is of the year 2001, the first appellate 4 Court is directed to hear and decide the same as expeditiously as possible, after hearing the parties and in accordance with the provisions of law. ( S.B.DESHMUKH, J.) ... akl