902ca1233-11-1392-11.sxw 1 spb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1233 OF 2011 IN SECOND APPEAL NO. 355 OF 2011 WITH CIVIL APPLICATION NO. 1392 OF 2011 IN SECOND APPEAL NO. 355 OF 2011 M.S.E.B. Employees’ ... Applicants. Urja Sahakari Griharachanda sanstha Maryadit, (Org.Defendants) through its Chairman : Shri Subhash Vinayak Dhavale and Secretary : Shri Sunil Digambar Vaidya both r/at : Urja Sahakari Griharachanda sanstha Maryadit, Survey No.43/9/A, Vadgaon Sheri, Pune-411 014. Versus Ninad Sahakari Gruharachana Sanstha Maryadit, ... Respondents. S.No. 43/8, Vadgaonsheri, Pune-14, (Org.Plaintiffs.) (through its Chairman : Shri S.S. Gosavi, and Secretary : Shamlal Shankarlal Pardeshi) --- Ms. Kiran Bhagalia i/by Ms. Asha Bhambwani for the Applicants. Mr. S. N. Chandrachood for the Respondents. --- CORAM:- G.S. GODBOLE, J. DATED :- 19th OCTOBER, 2011. 902ca1233-11-1392-11.sxw 2 P.C. : 1 Heard Ms. Kiran Bhagalia i/by Ms. Asha Bhambwani for the Applicants and Mr. Chandrachood for the Respondents. 2 In C.A. No. 1233 of 2011, Rule was already issued on 7.9.2011 and the Affidavit-In-Reply has been filed. 3 C.A. No. 1392 of 2011 is essentially a consequence of C.A. No. 1233 of 2011 and has been filed to lead secondary evidence in respect of the documents mentioned in C.A. No. 1233 of 2011. Hence, Rule in C.A. No.1392/2011 and the same is made returnable forthwith and heard alongwith C.A. No.1233/2011. 4 By filing C.A. No. 1233/2011 the Applicants seek to produce documents annexed at Exhs. ‘A’ to ‘A-4’ to this Civil Application. 5 The Applicant is the original Defendant in RCS No. 1460/1991 filed by the Respondent Society for declaration and permanent injunction in respect of the Road in Survey No. 43/8 at village Vadgaon Sheri, Tal. Haveli, Dist. Pune towards fencing within the land owned by the Respondent Society. The Trial Court decreed the suit on 13.2.2004 and 902ca1233-11-1392-11.sxw 3 Civil Appeal No. 358/2004 filed by the Appellant/Applicant has been dismissed by the learned District Judge -2, Pune by the impugned Judgment and Order dated 5.1.2011, leading to the filing of the present second Appeal. It will not out of place to mention here that the dispute is revolving around a compound wall constructed by the Respondent and the entire dispute is about road for ingress and egress to the land of the Respondent Society. Similar claim of having road for ingress and egress have also been made up by Pune Housing and Area Development Board (PHADB) which is a constituent of Maharashtra Housing and Area Development Authority (MHADA). In respect of the said compound wall the Pune Municipal Corporation issued a notice dated 3.4.2001 under section 478 of the BPMC Act, 1949 and the Respondent herein had filed a suit for challenging the said notice, seeking declaration and injunction. That suit was dismissed and the Appeal filed by the Respondent Society was also dismissed. Aggrieved by that order, the Respondent Society had filed Second Appeal (Stamp) No. 24695/2011 which has been allowed by me today, by a separate order. 6 Ms. Bhagalia submitted that some of the documents were in fact filed in the courts below but unfortunately, proper procedure for proving 902ca1233-11-1392-11.sxw 4 these documents in evidence had not been followed on account of a mistake committed by the Advocate for the Appellant for which the Appellant should not be made to suffer. Relying on the provisions of the Order 41, Rule 27 of the Code of Civil Procedure, 1908, Ms. Bhagalia submitted that Order 41, Rule 27 gives power to the Court to permit production of additional evidence even for any other substantial cause. She relied upon the Judgment of the Supreme Court in the case of Shalimar Chemicals Works Ltd., vs. Surendra Oil & Dal Mills (2010) 8 Supreme Court Cases 423 and particularly the paragraphs 11, 12 and 15 to 17 thereof. She also relied on the Judgment of the Supreme Court in Food Corporation of India vs. Assam State Co-operative Marketing & Consumer Federation Ltd., & Ors. (2004) 12 Supreme Court Cases 360 with particular emphasis on the observations in paragraphs 10 to 12 of the said Judgment. 7 On the other hand Mr. Chandrachood submitted that no case has been made out for permitting production of the additional documents or lead oral evidence under Order 41, Rule 27 of the Code since, according to him with due diligence production of these documents could have been done during the pendency of the Appeal itself. 902ca1233-11-1392-11.sxw 5 8 I have considered the rival contentions. Principal issue involved in the second Appeal is about existence of the Road as Right of Way as claimed by the Appellant and denied by the Respondent. This issue is required to be decided in the context of the provisions of the BPMC Act, 1949 and MR & TP Act, 1966 and Indian Easement Act and Maharashtra Land Revenue Code, 1966. It is apparent that the documents which are now sought to be produced were already in existence and that with some due diligence the documents could have been produced on record. Several documents appear to have been tendered in the Trial Court across the bar but unfortunately the learned Advocate of the Appellant appears to have lost sight of the fact that mere filing of the documents does not amount to proving of its contents and the document has to be proved by appropriate oral evidence and documentary evidence unless the documents are admitted. However, for such mistake of the Advocate, the Applicants cannot be made to suffer. 9 Reliance placed by Ms. Bhagalia on the aforesaid two Judgments of the Supreme Court is proper. In fact, considering the nature of the controversy involved in the present Second Appeal, these documents were 902ca1233-11-1392-11.sxw 6 crucial and it was also necessary to examine witnesses which are now sought to be examined by filing C.A. No. 1392/2011. Hence, a case for granting permission to lead additional evidence and produce additional documents is made out. However, it is not possible to record evidence for the first time in this court. In view of this, as a consequence of allowing the Application, I deem it fit to exercise the power of the Appellate Court under Order 41, Rules 25, 26 and 28 coupled with section 151 of the Code and pass the following order : i Civil Application Nos. 1392/2011 and 1233/2011 are allowed. ii Rule is made absolute in terms of prayer clause (a) of both the Applications. iii The parties are given liberty to lead oral evidence before the Civil Judge, in the Civil Court at Pune. It is clarified that merely on the ground of production of documents, neither the existence nor the contents of the documents shall be deemed to be proved and the entire burden of proving these documents will be on the Appellant who has sought to produce these documents. iv The Appellant is, therefore, granted liberty to produce these 902ca1233-11-1392-11.sxw 7 documents in the court of Ld. C.J., S.D., Pune in the present RCS No.1460 of 1991, though the said suit is disposed off technically. v So also the Respondent is granted liberty to produce such evidence in rebuttal as the Respondent may desire. vi The parties are granted liberty to apply for issuance of witness summons to such witnesses as may be desired. After production of such additional evidence, the learned Judge of the Trial Court to whom the suit will be assigned, shall record evidence of the admissibility or otherwise of the documentary evidence which will be produced. The said evidence shall be forwarded to the District Judge, Pune who may either hear matter himself or direct any other Judge of the rank of the District Judge or Additional District Judge to hear and decide any objections to the finding which may be rendered by the Trial Court. It is needless to observe that if any of the parties is aggrieved by the finding to be rendered by the Trial Court on the question of admissibility of the documents such party must raise specific written objection by filing of such written objection in the District Court. Only for that limited purpose this exercise will be done in the proceedings 902ca1233-11-1392-11.sxw 8 of Appeal No.358/2004 though the same is disposed off. vii The concerned Judge of the District Court, Pune will thereafter hear respective Advocates on the objections to the findings recorded by the Trial Court and thereafter, forward the entire proceedings, namely, the proceedings before the Trial Court and the decision of the learned District Judge on the objection to the finding of the Trial Court, if any, to this court. viii This entire exercise shall be completed within a period of three months from today. ix It is made clear that the Trial Court and the District Court would not go into the question of legal effect of the documents which are now allowed to be produced. In case the documents are either proved or not proved that aspect has to be gone into only when the Second Appeal is heard for admission or if admitted is to be heard finally. x List the Second Appeal for direction after three months. It is 902ca1233-11-1392-11.sxw 9 made clear that any party aggrieved by the findings recorded by the Trial Court and the order which the Appellate Court may pass will also be free to file objections to such findings in the present second Appeal. xi Both the Civil Applications are disposed off with the aforesaid directions with no orders as to costs. [G. S. GODBOLE, J.]