1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 5299 of 2011 Swarnamala wd/o George Balguru & Others. Vs. Bishop Cotton School, thr. Its Head Mistress Mrs. Mangala Samuel Bhalerao and another. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. V.D. Muley, Adv. for the petitioners. CORAM : SMT. VASANTI A. NAIK J. DATE : 18 th November, 2011. By this petition, the petitioners impugn an order passed by the first appellate court on 23.6.2011 rejecting an application filed by the petitioners under Order 41 Rule 27 of the Code of Civil Procedure for permission to file the document-zerox copy of Schedule-I of the trust on record. The petitioners are the legal heirs of original defendant- George. A suit was instituted by the respondents against the original defendant-George for eviction and possession. It was the case of the respondents that George, an employee of the school, was allowed to use a part of the property for his residence while in service, but after his retirement he did not vacate the suit premises and was a rank trespasser. The predecessor-in-title of the petitioners, George resisted the claim of the respondents and denied that the suit property belonged to the respondents. It was the case of George that he was not an employee or servant of the respondents and hence was not liable to be evicted. It was also pleaded that the plaintiffs did not 2 have locus-standi to institute the suit against the defendant- George. The original defendant sought for the dismissal of the suit. The trial court on an appreciation of the evidence on record decreed the suit filed by the respondents for eviction and possession. An appeal was preferred by defendant-George against the same. During the pendency of the appeal, George expired and his legal heirs were brought on record. The petitioners, the legal heirs of George, filed an application under Order 41 Rule 27 of the Code of Civil Procedure for permission to produce xerox copy of Schedule-A of the trust on record with a view to point out that the trustees who had authorised the Headmistress to institute the suit on behalf of the trust were indeed not the trustees of the trust at the relevant time. The application was, however, rejected by the first appellate court by the impugned order dated 23.6.2011. There is nothing wrong with the order passed by the first appellate court on 23.6.2011 rejecting the application filed by the petitioners. Firstly, it is necessary to note that it is nowhere pleaded by the defendant in the written statement that the trustees, who had authorised the Principal to file the suit on behalf of the trust, were not the trustees of the trust at the relevant time and hence could not have authorised the Principal to file the suit on their behalf. There is no pleading whatsoever in this retard. It is vaguely stated in the written statement that the plaintiff does not have the locus-standi or authority in law to institute the suit against the defendant-George. Moreover, it is necessary to note that, in case the defendant had thought that the Schedule-I would have thrown some light on the controversy, the defendant ought to have produced a copy of Schedule-I on record before the trial court. A copy of Schedule-I could have been obtained by the defendant 3 from the trust authorities by making an application in that regard. However, this was not done by the defendant. In fact, when the defendant cross-examined the plaintiff no.2, the plaintiff no. 2 had categorically stated that the documents were in possession of the trust authority but still the defendant failed to obtain them and produce them on record. Since the petitioners had not established that in spite of due diligence the defendant could not have produced the documents on record, the condition laid down in Order 41 Rule 27 of the Code of Civil Procedure for permitting a party to tender additional evidence was not satisfied. Even otherwise, in the absence of pleadings in regard to the relevance of this document which was sought to be produced, it cannot be said that the document sought to be produced by making an application under Order 41 Rule 27 of the Code of Civil Procedure was relevant for deciding the controversy between the parties. There is one more aspect which needs to be considered in this matter. The plaintiffs have pleaded and proved before the trial court that defendant-George is a trespasser and the plaintiffs are entitled to a decree of eviction. The first appeal was filed as early as in the year 2006. The first appellate court has rightly observed that the defendants are trying to protract the proceeding by filing one application after another with a view to remain in the suit property for long. Since none of the conditions laid down in the provisions of Order 41 Rule 27 of the Code of Civil Procedure were applicable to the facts of this case, the first appellate court rightly rejected the application filed by the petitioners under Order 41 Rule 27 of the Code of Civil Procedure. Merely because the petitioners are the legal heirs of original defendant-George, they could not have filed an application after they were brought on 4 record, specially when none of the conditions laid down in Order 41 Rule 27 of the Code of Civil Procedure is satisfied and the documents was also not relevant for deciding the issue involved in the matter. The judgment reported in 2010(4) Mh.L.J. 187 and relied on by the counsel for the petitioners cannot be made applicable to the facts of this case as the document produced by the appellant in that case was a document of title and was very much essential for effectively deciding the controversy between the parties. Hence, in the result, the writ petition fails and is dismissed with no order as to costs. JUDGE Hirekhan.