sa685.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.685 OF 2010 With CA/2319/2011 and CA/6631/2011 In SA/685/2010 SHRIRAM HARI JADHAV AND ORS. ... APPELLANTS. VERSUS NASER GANIMIYA DESHMUKH AND ANR. ... RESPONDENTS. ... Advocate for Petitioners : Mr. Milind Madhu Joshi Advocate for R.Nos.1 and 2: Mrs. Geeta Deshpande. ... CORAM : S.S. SHINDE, J. Dated: December 09, 2011 PER COURT: 1. Heard learned Counsel for the parties. 2. This second appeal has been filed challenging the judgment and order dated 27th January, 2010 passed by the Principal District Judge, Jalna in RCA No.258 of 2008 sa685.10 2 thereby confirming the judgment and order passed by the trial Court granting relief of injunction thereby restraining the appellants herein from interfering in the Gut No.27 owned by the original plaintiffs. It is not in dispute that the suit filed by the plaintiffs - respondents herein was simplicitor for injunction. 3. The learned Counsel for the appellants invited my attention to the grounds taken in the second appeal. According to him, Ground No.I, IV, V and VII involve substantial questions of law and, therefore, this appeal deserves consideration. The learned Counsel for the appellants submits that the appellants could not get opportunity to lead evidence and, therefore, the appellants could not prove their defence that the original owner sold the suit property to Shrichand and from him, the appellants purchased the suit land in the year, 1985 and thus, on the basis of the sale deeds, they are absolute owners and possessors of the suit land. Therefore, according to the learned Counsel for the sa685.10 3 appellants, following substantial questions would arise for consideration in this second appeal: "Whether the lower appellate Court was justified in refusing the prayer of remand particularly when no sufficient material was available on record to pronounce the judgment? and Whether the lower appellate Court was justified in refusing the prayer of remand, without any reason and findings and without scrutinizing the necessary of remand?" 4. The learned counsel further submits that the documents which were handed over to the Advocate, who appeared for the appellants herein before the trial Court, did not produce the correct document relating to Gut No.27 and wrongly produced the document in respect of Survey No.14. The learned Counsel for the appellants also invited my attention to the application along with documents under Order 41, Rule 27 of the Code of Civil Procedure filed in the second appeal and submitted that in the interest of justice, the appellants should get an opportunity to lead evidence before the sa685.10 4 court below. He further submits that the lower appellate Court should have remanded the matter back to the trial Court so as to give an opportunity to the appellants to lead evidence to prove their case. However, both the Courts below have not considered the W.S. filed by the appellants and reached to the wrong conclusion. He invited my attention to the reported judgment of the Supreme Court in case of Shyam Gopal Bindal & Ors. v. Land Acquisition Officer & Anr. (AIR 2010 SC 690) and submitted that an application filed under Order 41,Rule 27 of the C.P.C. by the appellants even can be entertained in second appeal. It is further submitted that if the appellants are allowed to produce the said documents in evidence on record, in that case, substantial justice will be done with the appellants. The decisions rendered by the courts below are in absence of relevant evidence on record. The sum and substance of the arguments of the Counsel for the appellants is that the application filed by the appellants under O. 41, R. 27 of the Code can be considered under Rule 27(1)(aa) and in particular, with a contention that even after exercise sa685.10 5 of due diligence, he could not produce the same before the courts below. He further submits that this Court may allow the said application for production of documents and also for leading evidence for substantial cause. Therefore, according to him, second appeal deserves consideration. 5. On the other hand, the learned Counsel for the respondents submitted that such an application under O. 41, R. 27 of the Code is required to be considered at the time of hearing of the appeal before the lower appellate Court or before the trial Court. It is not the case that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. The appellants have not established that notwithstanding the exercise of due diligence, such evidence was not within knowledge of the appellants or could not, after the exercise of due diligence, be produced by them at the time when the decree appealed against was passed. Therefore, according to the learned Counsel for the respondents, such an application may not sa685.10 6 be entertained. The learned Counsel for the respondents further submits that both the courts below, on appreciation of evidence on record, have concurrently held that the respondents i.e. original plaintiffs are owner of the suit property and there is obstruction of the appellants in the said suit property and, therefore, the trial Court has passed the order of injunction which has been confirmed by the lower appellate Court. Therefore, this Court may not interfere with the impugned orders. The learned Counsel for the respondents, to support her contention that the application filed under O. 41, R. 27 of the Code has to be filed at the time of hearing of the appeal, placed reliance on the judgment of Apex Court in the case of Malayalam Plantations Ltd. v. State of Kerala & Anr. [2011 AIR SCW 264]. Therefore, according to the learned Counsel for the respondents, this second appeal does not raise any substantial question of law and it deserves to be dismissed. 6. I have heard the learned Counsel for the parties at length. From perusal of the impugned judgment and sa685.10 7 order passed by the trial Court and also by the lower appellate Court, it clearly emerges that the findings recorded by the Courts below are in consonance with the evidence brought on record. The contention of the appellants that the findings recorded by the Courts below are perverse, cannot be accepted in absence of any evidence led by the appellants before the courts below. Both the Courts have observed that in spite of sufficient opportunity given to the appellants to lead evidence, the appellants / original defendants did not enter into the witness box. No evidence was adduced. The documents which were submitted before the Courts below, were in regard to survey no.14 and not in regard to survey no.27 or Gut No.5. Therefore, the contention of the appellants that both the courts below have not properly appreciated the contention of the appellants is devoid of any merits. The contention of the appellants that the Advocate, who was engaged on their behalf before the trial Court, did not produce the correct or relevant document in respect of survey no.27 or Gut No.5 on record, is not supported by affidavit of the said advocate that the said advocate sa685.10 8 by mistake, submitted the papers in respect of survey no. 14 instead of survey No.27 or Gut No.5. Therefore, it is difficult to accept the contention of the appellants that though the relevant documents in respect of survey no. 27 or Gut No.5 were handed over to the Advocate before the trial Court, he did not produce the correct document on record. It is admitted position that the relevant documents were not submitted by the appellants before the Court below. Whatever documents were submitted, those have been rightly appreciated by the Courts below. The courts below have recorded definite conclusion that the plaintiffs are owner of the suit property and they are in possession of the same and there is obstruction by the defendants i.e. appellants in the peaceful possession of the plaintiffs. 7. Belated attempt of the appellants to file an application under O. 41, R. 27 of the Code to take additional evidence and documents on record, cannot be countenanced since it does not fulfill the requirement of the provisions of O. 41, R. 27 of the Code. Admittedly, sa685.10 9 the appellants did not try to produce on record the documents which now they wish to produce on record before the lower appellate Court when there was opportunity to the appellants to produce the same on record. The appellants have not shown any due diligence to produce the additional evidence on record. It is also not the case of the appellants that such evidence was not within their knowledge. The case of the appellants that the advocate, who was engaged to represent their case, did not file the relevant documents, rather he filed the documents in respect of wrong survey number and, therefore, the appellants were deprived of having an opportunity to put forth their case, cannot be accepted. At the cost of repetition, it has to be observed that there is no any infirmity or fault which could be attributed to the concurrent findings recorded by the Courts below. Therefore, there is no merit in the second appeal and no substantial question of law is raised by the appellants. 8. Hence, Second Appeal is dismissed summarily. Consequently, civil applications stand disposed of. sa685.10 10 The appellants will be at liberty to take appropriate steps, as permissible in law, to seek redressal. This court has not expressed any opinion about the same. However, it is made clear that any observations made in the judgments of the courts below or by this Court, those will not come in the way of the appellants while prosecuting any other remedy available to them. [ S.S. SHINDE ] JUDGE. ... PLK/*