1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1495 OF 2008. Vilas S/o Narsappa Narare ... Petitioner. Versus Dattatraya S/o Balasaheb Deshmukh and others ... Respondents. ... Mr.V.D.Gunale, advocate for the petitioner. Mrs.M.A.Kulkarni, advocate for the Respondent Nos.1 and 2. Mr.G.J.Gore, advocate for the Respondent No.3. ... CORAM : V.R.KINGAONKAR,J. Date : 03.07.2009. PER COURT 1. Rule. Rule made returnable forthwith and heard finally. 2. By this petition, the petitioner challenges order dated 23.1.2008, rendered by learned District Judge, Ambejogai on his 2 application (Exh.38) in (RCA No.39.1996). 3. The petitioner is purchaser of one of the suit land bearing Gat No.119 to the extent of 1 hectare and some odd Ares. He purchased the said land from defendant No.1 Balasaheb. The petitioner is original defendant No.4 in suit (RCS No.340/1990). The suit was filed by two minor sons of defendant No.1 Balasaheb for declaration of ownership and perpetual injunction. They asserted that a compromise decree was brought about in earlier suit bearing (RCS No.347/1982) for partition and, therefore, they became owners of the two parcels of the lands shown in the claim clause, under terms of the said compromise decree. They contended that defendant No.1 Balasaheb, who is their father, had no legal right, title and authority to alienate any of the suit land. The suit was dismissed. The appeal was, however, was allowed by the first appellate Court. The suit, therefore, came to be decreed. Two Second Appeals were preferred against the judgment of the first appellate Court, bearing S.A.No. 3 536/2003 which was filed by the present petitioner and S.A.No.537/2003 filed by one of the purchaser i.e. defendant No.2. This Court dismissed both the appeals. The petitioner filed SLP and Civil Appeal No.1465/2005 which is allowed by the Apex Court. The Apex Court remanded the matter to the first appellate Court for deciding the appeal on merits. There is no dispute about the fact that in view of such remand order of the Apex Court, RCA No.39/96 is pending for consideration before the Court of learned District Judge. Mr.Gunale, learned advocate would submit that he gave application for production of the documents and not for adducing any separate evidence. He would point out from the tenor of the application (Exh.38) that the prayer clause itself is conspicuous regarding the intention of the petitioner to place on record the copies of two sale deeds which were lateron executed by defendant No.1 and attested by the original plaintiff Nos.1 and 2. Mr.Gunale, submits that the application was not for adducing of evidence as per provisions of Order XXXXI Rule 27 of the C.P.C. but only for 4 the production of the certified copies of the sale deeds in order to clarify certain position regarding nature of the compromise decree on which the suit claim was founded by the plaintiffs. He makes a statement that he does not want to adduce any oral evidence as such before the first appellate Court. 4. The impugned order reveals that the learned District Judge did not properly considered tenor of the application. He held that the petitioner can not be permitted to adduce the additional evidence as no case is made out by him. The impugned order is cryptic and seems to have been rendered without application of judicial mind. The reasons assigned by the learned District Judge are also vague and unconvincing. The petitioner desired to place on record the copies of the two sale deeds and may be that he may seek admission or denial about signature of the plaintiffs. But once it is noticed that no oral evidence was sought to be tendered, it is quite clear that the application was not for adducing of additional evidence as 5 such. Thus, it could not be treated as an application for the purpose of adducing of the evidence. Secondly, assuming that it is an application of adducing of the evidence as per the caption of the application, then also the application could not have been out-rightly rejected. The first appellate Court is the last Court of facts. The appeal is continuation of the suit and in an appropriate case further evidence may be allowed even at the appellate stage in order to do complete justice between the parties. It is true, that the application was made at belated stage. Still, however, the chequered history of the litigation can not be overlooked. The petitioner was successful in the trial Court and, therefore, there was no reason for him to adduce any evidence about the subsequent conduct of the plaintiffs and their connivance with the defendant No.1. The transactions are the post- litum transactions. Both the sale deeds were apparently executed after filing of the RCA No. 39/96 before the appellate Court. In this view of the matter, the application should have been allowed in order to examine whether the earlier 6 compromise between the plaintiffs as minors, their father i.e. defendant No.1 and others were outcome of collusion. For, the contentious issue is whether the properties of the UHF were divided and the plaintiffs were allotted the suit lands to their share and actually the partition was effected as claimed by them. 5. Considering the foregoing reasons, I am of the opinion that the impugned order is arbitrary and unsustainable. Hence, the petition is allowed. The impugned order is quashed. The application be deemed as allowed and production of the documents shall be permitted by the first appellate Court. The appeal is old one and as such the first appellate Court is directed to expedite final hearing thereof and to decide the same within a period of eight (8) months as far as possible. Rule made absolute accordingly. (V.R.KINGAONKAR,J.) asp/office/wp149508