1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR WRIT PETITION NO: 4749/2007 (Kishore Bhuwanlal Karwar vs. Smt. Ratnidevi wd/o Chugh ) ---------------------------------------------------------------------------------------------------------------- Office Notes, Office Memorandum of Coram Court's or Judges Order appearances, Court's orders of directions and Registrar's orders. .................................................................................................................................................................. Ms. Rashi Deshpande, Adv.for petitioner Mr. O.G. Paunikar, Adv.for Respondent CORAM: B.R. GAVAI , J. DATED: 07 th February, 2008. *** By way of present petition, the petitioner challenges the order dated 16 th February 2007, vide which the application filed by the present petitioner for permission to lead additional evidence at the stage of appeal, has been rejected. 2. The plaintiff/respondent has filed a suit for eviction and possession on the ground of bona fide need and non-user of the premises. The suit is decreed on the ground of non-user. Being aggrieved thereby, an appeal is preferred by the present petitioner. During the pendency of an appeal, by way of additional evidence, the petitioner wanted to produce on record the registration certificate of the restaurant dated 26th June 2003 which was continued upto 2005 and receipt dated 15th July 2003. The said application is rejected. Hence the present petition. 2 3. Shrimati Rashi Deshpande, learned counsel appearing on behalf of the petitioner submits that the learned Appellate Court has erred in rejecting the application. She submits that at the relevant time when the evidence was recorded by the learned trial Court, the aforesaid documents were not in the custody of the petitioner ; the same were in the custody of the Police Department and, as such, could not be produced at the trial. She submits that no prejudice whatsoever would be caused to the other side if the said documents are permitted to be produced on record. Rule 27 (aa) of Order XLI CPC reads thus: “27. Production of additional evidence in Appellate Court :- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a).... (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or )” 4. It can, thus, be seen that by taking recourse to the aforesaid provisions, an additional permission could be 3 permitted at the appellate stage only if the party to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. Admittedly, the suit is filed on 1st August, 2003. The aforesaid two documents are dated 26th June 2003 and 15th July 2003. The evidence was recorded on 6 th August 2005. It is, thus clear that the aforesaid documents were very much within the knowledge of the petitioner and if the petitioner had exercised due diligence the said documents could have been produced at the stage of the trial. 5. In that view of the matter, no infirmity whatsoever could be found with the impugned order passed by the lower Appellate Court. Hence rejected. JUDGE sahare