1 wp 5684.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5684 OF 2011 Manohar Bhikaji Bhandarkar, Age : 72 Years, Occu. : Advocate, R/o Amalner, Dist. Jalgaon. .. Petitioner. Versus 1. Shashikant Magan Bhandarkar Deceased through his L.Rs 1A Lila Shashikant Bhandarkar, Age : 55 Years, Occu. : Household, 1B Sachin Shashikant Bhandarkar, Age : 44 Years, Occu. : Service, Died through L.Rs. 1B-A Bharati Sachin Bhandarkar, Age : 38 Years, Occu. : Household, R/o Barhanpur, Dist. Barhanpur (M.P.) 1B-B Parag Sachin Bhandarkar, Age : 17 Years, Occu. : Education, Through his natural guardian mother Bharati Sachin Bhandarkar, Age : 38 Years, Occu. : Household, R/o Barhanpur, Dist. Barhanpur (M.P.) 2 wp 5684.11 1B-C Lila Shashikant Bhandarkar, Age : 55 Years, Occu. : Household, C/o Rajesh Shashikant Bhandarkar, Gangotri Apartment, 2nd Floor, Flat No. 12, Plot No. 58, S. No. 34/1, Vidyanagar, Pune - 3. 1C Subodh Shashikant Bhandarkar, Age : 41 Years, Occu. : Agril., 1D Rajesh Shashikant Bhandarkar, Age : 35 Years, Occu. : Education. 1E Shilpa Shailash Shimpi, Age : 38 Years, Occu. : Household, The Respondent Nos. 1A to 1E R/o Japan Gin, Amalner, Dist. Jalgaon. 2. Shri Kashinath Ramchandrashet Shimpi (Bhandarkar) Deceased through his L.Rs. 2A Avinash Kashinath Bhandarkar, Age : 63 Years, Occu. : Service, R/o Japan Gin, Amalner, Dist. Jalgaon. 2B Satish Kashinath Bhandarkar, Age : 60 Years, Occu. : Business, R/o Japan Gin, Amalner, Dist. Jalgaon. 3 wp 5684.11 2C Vimalbai Manohar Pagar, Age : 58 Years, Occu. : Household, 2D Rajani Madhukar Borse, Age : 62 Years, Occu. : Household, 2E Pushpa Arun Bakare, Age : 53 years, Occu. : Household, Notices of Resp. Nos. 2C, 2D and 2E be served upon Resp. No. 2A being their Power of Attorney holder : Avinash Kashinath Bhandarkar, Age : 63 Years, Occu. : Service, R/o Japan Gin, Amalner, Dist. Jalgaon. 3. Shri Laxman Ramchandrashet Shimpi (Bhandarkar) Deceased through his L.Rs. 3A Indirabai Laxman Bhandarkar, Age : 82 Years, Occu. : Household, 3B Vilas Laxman Bhandarkar, Age : 65 Years, Occu. : Vastushilpi, 3C Suhas Laxman Bhandarkar, Age : 56 Years, Occu. : Agril., 3D Shrikrishna Laxman Bhandarkar, Age : 51 Years, Occu. : Agril., 4 wp 5684.11 3E Vivekanand Laxman Bhandarkar, Age : 45 Years, Occu. : Business, 3F Geeta Subhash Bhandarkar, Age : 60 Years, Occu. : Household, 3G Vananda Padmakar Korde, Age : 58 Years, Occu. : Household, 3H Vasudha Pramod Basale, Age : 53 Years, Occu. : Household, Resp. Nos. 3A to 3H R/o Japan Gin, Amalner, Taluka Amalner, District Jalgaon. 4. Smt. Laxmibai Jagannath Shimpi, Deceased through her L.Rs. 4A Subhash Jagannath Sanyasi, Age : 69 Years, Occu. : Business, R/o Mangal Jyoti Apartment, Opp. Patil Mangal Karyalaya, Ganesh Chowk, At Post Badlapur (W), Taluka Kalyan, Dist. Thana. 4B Nandkumar Jagnnath Sanyasi, Age : 65 Years, Occu. : Nil, R/o Bunglow No. 17, Datta Krupa, Uttaranagar, Near Tirupati Petrol Pump, Bodhale Nagar, Nashik. 5 wp 5684.11 4C Sau. Rajani Ramakant Sonawane, Age : 67 Years, Occu. : Household, R/o Kranti Nagar, Bhawani Chowk, Manmad, Dist. Nashik. 4D Sau. Nalini Anil Bakare, Age : 55 Years, Occu. : Household, R/o Chandak Circle, Near Hyundai Show Room, Nashik, Tq. & Dist. Nashik. 4E. Sau. Deepa Vasantrao Sonawane, Age : 53 Years, Occu. : Household, R/o 6, New Kapaleshwar Housing Society, Uday Colony, Near Bachav Housing Society, Makhamalabad Naka, Nashik, Tq. & Dist. Nashik. 4F Sau. Ranjana Nandkumar Bhamare, Age : 64 Years, Occu. : Household, R/o 3, Mangal Jyoti Apartment, Opp. Patil Mangal Karyalaya, Ganesh Chowk, Badlapur (W), Dist. Thane. 4G. Shri Shamkant Jagannath Sanyasi, Age : 52 Years, Occu. : Business, R/o 3, Mangal Jyoti Apartment, Opp. Patil Mangal Karyalaya, Ganesh Chowk, Badlapur (W), Dist. Thane. .. .. Respondents Shri Girish S. Rane, Advocate for the Petitioner. Shri R. M. Deshmukh, Advocate for the Respondents. 6 wp 5684.11 CORAM : S. V. GANGAPURWALA, J. DATE : 21ST OCTOBER, 2011. ORAL JUDGMENT : . Rule. Rule returnable forthwith. With the consent of parties taken up for final hearing. 2. The petitioner has filed the appeal before the District Court aggrieved by the judgment and decree passed by the Trial Court. During the pendency of appeal the present petitioner filed an application U/O 41 Rule 27 of the Code of Civil Procedure for production of additional evidence. The said application is rejected. Aggrieved thereby the present petition is filed. 3. Shri Rane, the learned counsel for the petitioner submits that the application has been erroneously rejected and the petitioner has satisfied ingredients of Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence. The learned counsel also contends that the application may not have been decided without considering the appeal on merits. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Malyallam Plantation Vs. The State of Kerala reported in AIR 2011 SCW 264 and another judgment 7 wp 5684.11 of the Apex Court in a case of State of Rajasthan Vs. T. N. Sahani reported in (2001) 10 SCC 619. 4. Shri R. M. Deshmukh, the learned counsel for respondents submits that the application has been rightly rejected. The petitioner was having knowledge of the same and the production of additional evidence cannot be allowed. The petitioner had the knowledge of the facts which is being sought to be produced by way of an additional evidence. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of Haryana State Industrial Development Corporation Vs. M/s Cork Manufacturing Co. reported in AIR 2008 S. C. 56, another judgment of Apex Court in a case of State of Gujarat and Another Vs. Mahendra Kumar Parshottambhai Desai reported in AIR 2006 S C 1864 and the judgment of the learned Single Judge of this Court in a case of Mrs. Indira Bhalchandra Gokhale Vs. Union of India reported in AIR 1990 Bombay 98. 5. The Apex Court in a case of Malyallam Plantation Vs. State of Keralla and State of Rajasthan Vs. T. N. Sahani referred supra has held that the application for adducing 8 wp 5684.11 additional evidence has to be considered along with the appeal and could not have been decided dehors the appeal. 6. In view of the above I need not go into merits of the order passed. The appeal is yet to be heard on merits. At the time of considering the appeal on merits, the Court has to satisfy itself about the additional evidence sought to be produced and other ingredients laid down under Order 41 Rule 27 of the Code of Civil Procedure as is held by the Apex Court in the cases referred supra. 7. In view of that the impugned order is quashed and set aside. The District Court dealing with the appeal shall consider the application for additional evidence on its own merits along with appeal. The appellate Court shall decide the appeal as expeditiously as possible and preferably within a period of six (6) months from today. Rule is made absolute in above terms, with no order as to costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Oct. 11