1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 21. SA/232/2009 With CA/12486/2008 _______________________________________________________________ Office Notes, Office } Memoranda of Coram, } Court's or Judge's orders appearances, Court's } orders or directions } and Registrar's orders } ___________________________}___________________________________ Mr. Sachin Deshmukh, Advodate for appellant. Mr. V.P. Kadam, Advocate for respondent no.1. [CORAM : K.U. CHANDIWAL, J ] Date : 05th April, 2010. PER COURT : 1 Heard both counsel. 2 Civil Application No. 12486 is moved by original plaintiff Gurunath Appa urging that the document at Ex. A-1 (Agrement cum Kararnama) dated 26/07/1996 be taken on record as additional evidence at appellate stage. Mr. Deshmukh in support of the application submits, the appellant could 2 not adduce the evidence, as there was an order against the appellant / plaintiff in terms of Order XVII Rule 3 of the Code of Civil Procedure forfeiting his rights. Consequently, the document in the shape of agreement for re conveyance of the suit land referred to above could not be produced. He submits, even in the examination in chief of the appellant, reference to this document is given. Consequently, the document needs to be accepted. 3 Mr. Kadam the counsel for the respondents / defendants submits that the very agreement itself is shrouded with several infirmities. Same does not bear signature of Gurunath Appa – the plaintiff one of the party to the agreement. That apart, according to him, identical prayer was made before the Court of first instance which was rejected. Second prayer below Ex. 19 in the first appellate Court was made and an order came to be passed on 3 06/07/2005 rejecting the application. The counsel submits, this will be third exercise, which the Court should not entertain in second appeal. 4 Mr. Deshmukh for the appellant submits that the mistake if any, has indeed happened due to over sight, the appellant being an agriculturist and illiterate, could not prosecute the matter and hence, needs re-consideration, for production of document. 5 Normally, even at appellate stage, if situation warrants, orders / directions in term of Order XLI Rule 27 of the Code of Civil Procedure, are issued. Indeed, it is a paramount duty for a party, seeking production of additional evidence at appellate court to establish that the refusal by the Court of first instance, was erroneous or notwithstanding exercise of due diligence, such evidence was not within the knowledge and could not, after exercise and due diligence, be produced 4 by him at the time when the decree in appeal, against him was passed. 6 The record illustrates, the application below Ex. 45 was moved by the plaintiff to call witnesses. Consequently, it was allowed. Two witnesses Wamanrao Mule and Vinayak Mule attended the Court pursuant to the court summons. In spite of witnesses being present, plaintiff was audacious to make an application informing the Court that the witnesses had gone out of station, resultantly the Court of first instance, rejected application seeking adjournment. Thereafter, on 22/01/2004 the plaintiff did not make efforts to lead evidence of those witnesses who were present in the Court. After sufficient long duration, on 08/03/2004 plaintiff again filed an application Ex. 52 and sought permission to lead evidence. However, by order dated 14/06/2004 it was rejected. The identical prayer as stated 5 above, was indeed not entertained by first appellate court, by recording the reasons. 7 The courts have found, there is variance in pleading of the plaintiff and the evidence. The documents / receipts to which reliance was sought to be placed, did not match to both the evidence and the pleading and they are leaning to the third situation, not contemplated by the plaintiff. 8 Though it was contended, the plaintiff had produced xerox copy of the document / agreement, the Court should have allowed the application. However, the record dispel plaintiff’s contention of any bona fide mistake. Conduct of the plaintiff more suggests, he wanted to drag litigation. He was not equipped with the relevant papers and desired to kill the time. I do not find any merit in the application. It is rejected. 9 The plaintiff came with the case 6 that the sale deed executed by him, was not indeed a sale deed in true sense but it was with the further document to re- convey in favour of the plaintiff. There is jugglery in evidence of the plaintiff even in his pleading. The mutation entries based on the sale deed being mutation entry no. 253 proved vide Ex. 8 in the revenue record established at any point of time, plaintiff objected for such eventuality. The plaintiff staking claim of re-conveyance was equally required to produce copy of sale deed upon which, he was banking surreptitiously, he failed to do it. He claims that the court should rely the agreement has its own astonishing doubtful feature. The receipt which was annexed with the application dated 19/04/2002 purporting to be signed by Vasant Sambhaji Dhumal, Keshav Krishnaji Dhumal (Respondent) has several eraser and it has changed the colour and complexion of the document. This 7 receipt is not established. The survey of facts demonstrates, both the Courts did not commit any illegality. The appreciation of evidence was in tune to the document and was in legal term. Second appeal sans merit. Dismissed. Civil application dismissed. [K.U. CHANDIWAL, J.] tsk/sa232.09