1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2356 OF 2008 1. Janardhan S/o Tatyarao Pande } Age : 74 Years, Occ. : Nil, } R/o : Old Cloth Lane, Latur. } 2. Parmanand S/o Janardhan Pande } Age : 45 Years, Occ. : Photo Studio } R/o : Old Cloth Lane, Latur. } 3. Satish S/o Janardhan Pande } Age : 36 Years, Occ. : Private service } R/o : Old Cloth Lane, Latur. } 4. Venkatesh S/o Eknathrao Pande } Age : 57 Years, Occ. : Service, } R/o : Sinnu Nagar, Peth no. 25, } House NO. 62/7 PPC Chinchwad } Nagar, Pune. } 5. Narayan S/o Eknathrao Pande } Age : 57 Years, Occ. : Pvt. Service, } R/o : Sinnu Nagar, Peth no. 25, } House NO. 62/7 PPC Chinchwad } Nagar, Pune. } 6. Govind S/o Eknathrao Pande } Age : 54 Years, Occ. : Service, } R/o : Sinnu Nagar, Peth no. 25, } House NO. 62/7 PPC Chinchwad } Nagar, Pune. } .... PETITIONERS V E R S U S 2 1. Laxmibai W/o Rajaram Pande } Age : 75 Yrs., Occ. : Household, } R/o : Old Cloth Lane, Latur. } 2. Sanjay Rajaram Pande } Age : 39 Yrs., Occ. : Pvt. Service, } R/o : Old Cloth Lane, Latur. } 3. Shakuntala W/o Dattatraya Patki } Age : 55 Yrs., Occ. : Household, } R/o : Marathwada Plot, } Sai Corner, Near Dr. Shahane, } Parbhani, Tq. & Dist. Parbhani. } 4. Leela W/o Murlidharrao Dhange } Age : 49 Yrs., Occ. : Household, } R/o : H.No. 742,Mahada colony, } Babhalgaon road, Latur. } 5. Suman D/o Rajaram Pande } Age : 44 Yrs., Occ. : Household, } R/o : Old Cloth Lane, Latur. } .... RESPONDENTS Mr. S.A.Patil, Advocate holding for Mrs. Pratibha Ambadasrao Patil, Advocate for petitioner. Mr. Dhananjay Deshpande,Advocate for respondent nos. 1 to 5. CORAM : V.R.KINGAONKAR, J. DATE OF JUDGMENT : 17/02/2010 3 ORAL JUDGMENT : 1. By this petition, the petitioners challenge Order dated 1/3/2008 rendered by the 4th Adhoc District Judge, Latur rejecting their application ( Exh. 17 ) in Regular Civil Appeal No. 181 of 2006 seeking leave to place on record copies of city survey record under Order XLI Rule 27 of the Code of Civil Procedure. 2. The petitioners are original defendant nos. 1 to 6. They alleged that the house property in question, bearing CTS No. 9416 was the joint family property. The respondents ( plaintiffs) alleged that it was the exclusive property of deceased Rajaram Pande and he had purchased the same. The suit filed by the respondents for adjudication of ownership and injunction as well for possession of part of the house property was decreed. The petitioners filed application (Exh. 17) in their Appeal (R.C.A. No. 181 of 2006) preferred against the decree rendered by the trial Court, seeking leave to file copies of the city survey record. The learned 4th Adhoc District Judge, Latur rejected their application on the ground that it was not within the parameters of Order XLI Rule 27 of the Code of Civil Procedure. 3. Heard learned counsel for the parties. 4. At the out set, it is pertinent to note that the petitioners 4 had filed a similar application in the trial Court and had asked for leave to produce the copies of the public record in order to substantiate their contentions about joint ownership of the house property. Their application was rejected by the trial Court by order dated 19/9/2006 for the reason that the documents were produced at belated stage. It is important to note that the petitioners had not asked for permission to lead any oral evidence while producing those documents before the trial Court. Needless to say, there was no likelihood of protraction of the suit proceedings due to such kind of production. The petitioners had not filed any private document which required proof by examining any witness. The conduct of the petitioners go to show that they were diligent even in the trial Court and wanted to place on record the relevant documents. Mere late production of such documents could not be denied unless it could have caused any serious prejudice to the respondents ( plaintiffs ). There is no material on record to infer that the respondents might have been prejudiced due to such kind of late production of the said documents. 5. The appellate Court has discretion to allow production of evidence under Order XLI Rule 27 of the Code of Civil Procedure in case it is demonstrated that the party could not produce such documents in the trial Court, notwithstanding due diligence or because of lack of knowledge about the relevant documents. In the present case, the petitioners had made bonafide attempt to produce the said documents 5 before the trial Court. Obviously, it will have to be inferred that they attempted to place on record the said documents which are copies of the public record. In other words, it can not be said that the petitioners were lethargic or had not made any attempt to produce the relevant record before the trial Court. Mr. Deshpande, learned counsel for the respondents invited my attention to certain observations in “ Gurdev Singh and Ors. V/s Mehnga Ram and Anr ” ( 1997 (4) ALL MR – 671 ). The Apex Court held, “ allowing of additional evidence by way of examination of the hand writing expert when the appeal was pending for final hearing, could not be interfered by the High Court in its revisional jurisdiction ”. The authority cited by the learned counsel deals with revisional jurisdiction of the High court in the context of interim orders rendered in the Appeal. The implied impact of the authority cited by the learned counsel is that allowing of additional evidence by the appellate Court is discretionary order and was not, therefore, liable to be interfered with in the exercise of the revisional jurisdiction. The writ jurisdiction is of supervisory nature and that here is the case in which the discretion used by the first appellate Court is against the settled principles of equity and law. The reasons ascribed by the learned Adhoc District Judge are not legal and proper. He vaguely stated that as a rule, the production can not be allowed as per whims of the parties to the suit. One of the criteria to consider such request is to examine whether it would be in the interest of justice to permit such production. This aspect is lost sight of by the first appellate Court. In this view of 6 the matter, it is difficult to say that the impugned order is sustainable in the eye of law. 6. In the result, the petition is allowed. The impugned order is set aside. Rule made absolute accordingly. The first appellate Court shall allow the production of the relevant documents. The appeal be expedited for final hearing. [ V.R.KINGAONKAR ] JUDGE knp/WP 2356.08