SM 1 57.wp.5304.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5304 OF 2011 Jaywant Vasant Vichare and others ....Petitioners. Versus Shankar Dattaram Surve and others ....Respondents. ____________ Mr. A. S. Rao for the Petitioners. Mr. A. S. Patil for the Respondents. CORAM: R. M. SAVANT, J. DATED : NOVEMBER 28, 2011. P.C.: Rule, with the consent of the parties, made returnable forthwith and heard. 2. The above petition filed under Article 227 of the Constitution of India, takes exception to the order dated 5th April, 2011 passed by the District Judge-1, Sindhudurg at Oros, by which order, an application for sending the document, i.e., Partition Deed to the Trial Court for exhibiting it, came to be rejected. 3. The petitioners herein are the original appellants in the Regular Civil Appeal No. 10 of 2003. The said Appeal has been filed against the judgment and decree passed in Regular Civil Suit No. 67 of 1998. The said suit was for partition and possession of the suit properties. The said suit came to be dismissed by the SM 2 57.wp.5304.11 judgment and order dated 12th November, 2002 passed by the Joint Civil Judge, Junior Division, Sawantwadi. 4. Aggrieved by the dismissal of the suit, the plaintiffs have filed Regular Civil Appeal No. 10 of 2003. In the said Appeal, the plaintiffs moved an application Exhibit-43 to amend the plaint in terms of the proposed amendment as contained in paragraph nos. 2-A and 2-B of the plaint which came to be allowed by order dated 19th August, 2008. The petitioners filed an application for leading evidence Exhibit-20, which came to be allowed by order dated 1st April, 2006. The petitioners, thereafter, filed another application Exhibit-64 requesting the learned District Court to remit the matter back to the Trial Court with a direction to the Trial Court to record, the additional evidence. The said application Exhibit-64 was allowed, and the Trial Court was directed to record the additional evidence. The defendants also filed their Written Statement to the amended plaint. In sofar as the amendment was concerned, the said amendment related to the Partition Deed dated 29th June, 1914 which was in the 'Modi' script and which was translated by one of the persons knowing the 'Modi' script. In accordance with the directions of the First Appellate Court, the parties led evidence and the petitioners, i.e., the appellants examined the translator Mr. Prabhakar Varaskar, SM 3 57.wp.5304.11 who was also cross-examined by the defendants. Further, it appears that while remitting the matter back to the Trial Court, the document in question which was filed by the petitioners in the First Appellate Court, i.e the Partition Deed which which was translated at Exhibit-23 of the Appellate Court remained to be sent to the Trial Court. The petitioners discovered the same after some time when the evidence was completed. Hence, the petitioners moved the instant application Exhibit-66 for sending the document and exhibiting the same. 5. The said application has been rejected by the First Appellate Court on the ground that since the additional evidence is already complete, the prayer of the petitioners by way of the said application could not be entertained. 6. Heard the leaned counsel for the parties. In my view, considering the fact that the amendment to the plaint was allowed as also the petitioners were allowed to led additional evidence and wherein the Partition Deed is the centre of the said amendment, it would be unjust to not to allow the petitioners the relief sought vide the said application Exhibit-66. If the said relief is not granted, the orders passed by the First Appellate Court for permitting amendments allowing the petitioners to led additional SM 4 57.wp.5304.11 evidence and remitting the matter back for recording additional evidence would be frustrated. Therefore, the said application Exhibit-66 is required to be allowed. However, since the evidence is now complete, the petitioners would be entitled to make submissions as regards the admissibility of the said document referred to in the evidence already recorded at the time of hearing of the above suit. 7. The above Writ Petition is accordingly allowed. Rule is made absolute in the aforesaid terms. 8. The concerned parties are directed to act upon an authenticated copy of this Order duly authenticated by the Court Associate. (R. M. SAVANT, J.)