1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.1112 OF 2010 Sudhir Rajabhau Gondhali and one another PETITIONERS V E R S U S Kanhuji Fakirchand Misal RESPONDENT. Mr.D.K. Kulkarni, advocate for the petitioners. Mr.Ghule h/f Mr. D.V. Soman, advocate for the respondent. CORAM : S. B. DESHMUKH, J. DATE : 16th FEBRUARY, 2010. PER COURT :- 1. Heard learned counsel for the parties. 2. At the outset, in my view it requires to be noticed and recorded that when this matter was taken up, Advocate Mr. A.M. Ghule, informed the court that Advocate Mr. D.V. Soman is appearing on behalf of respondent. He sought one or two weeks' time. He also made a statement on instruction that till that time respondent would not take any step in the proceeding. Mr. Kulkarni, counsel for the petitioner objects such grant of time. He submits that this writ petition was on cause list of this court on 15.02.2010. It is a matter of record that this court was not available for juridical work on 15.02.2010. That is how today this matter is before this Court. 3. Counsel Mr. Kulkarni, for the petitioners points out that RCA No. 342/2006 along with 343/2006 was on cause list of First Appellate Court, yesterday i.e. on 15.02.2010. It was pointed out to First Appellate Court that this petition is pending before this Court, was on the cause list of this Court yesterday, since the matter not taken up. Matter was likely to be considered today by this Court and for this reason, first appellate court also adjourned two 2 appeals yesterday to today. That is how counsel for the petitioners points out circumstances in the matter. 4. Considering the submissions of both counsel for adjournment, I have requested both of them to point out impugned order. After reading the order impugned, I am of the view that it could not be in the interest of justice to adjourn the matter for two weeks, even if, counsel for the respondent on instruction makes a statement that his client would not take further step in the matter. It is important to note that both the appeals before First Appellate Court were listed for final hearing yesterday and are adjourned to today. There is no question of taking step by any of the party. Parties have to cooperate with the First Appellate Court and court after hearing the parties has to decide appeals in accordance with the provisions of law. 5. With the assistance of learned counsel for the petitioners, I have considered the application for additional evidence under Order 41 Rule 27. Copy of which is on record annexure 'D' (page 88). This application is filed by the appellant/plaintiff in the suit. Counsel for the petitioners points out paragraph No.2 of the application. According to him, this application covers the eventuality laid down under Order 41 Rule 27 (aa) of the Code of Civil Procedure. In paragraph No.2, petitioner-appellant has put forth a story as to how documents which are tried to be produced on record, came to the knowledge of the present petitioners. Story starts from mentioning the fact that “the grand father of present petitioner Mr. Gangadhar Guru died in the month of November 1995, was bed ridden for about 7-8 years since he had suffered attack of paralysis, was not in a position to speak. He was reader of holly book (Bhagwat). Grand father of the petitioner since was suffering from paralysis attack, according to petitioner, grand father called Mr. Kanhuji and Janardhan, message was given through one Dhondi Aba. Dhondi Aba according to story was the servant at the relevant time. Thereafter reference of one chit and another document is made. End of the story is that these documents were kept in the holy book 'Bhagwat'. A statement is made as "these documents were not out of the knowledge of the petitioner, so there is no any bar to produce as evidence in the appeal". Text I 3 have taken from the paragraph No.2 of the application filed by the petitioner. Meaning is not logical but then it appears from this statement/text that these documents were not within the knowledge of the petitioner. On this ground production is sought. Counsel for the petitioners as I have noticed states that case is made out under order 41 Rule 27 of (aa) of C.P.C. 6. Counsel for the respondent points out Order 41 Rule 27 (aa). 7. I have perused order passed by the trial court. In paragraph no.4 of the order, trial court records that matter was remanded twice. Story put forth by the petitioner was refused to be believed by the trial court. 8. The Court, at this stage is not supposed to enter into merits of the documents. Court is concerned with the provisions laid down Order 41 Rule 27. Court has to find out as to whether case is made out for production. Having considered the submissions of the counsel, order passed by the trial court, pendency of two suits bearing RCS No.39/1993 and 113/1997. From these two numbers one thing is very clear that suit of 93 is pending for about 17 years, another suit is pending for about 13 years. I am not swayed away only because of the pendency of the suit. First Appellate Court has recorded in the order that twice there was remand by the First Appellate Court. Having considered all these circumstances, In my view, no case for interference, since no case under Order 41 Rule 27 (aa) is established. 9. Writ Petition stands dismissed. No order as to costs. Rule stands discharged. ( S. B. DESHMUKH ) JUDGE. ..... aaa/1112.10