1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 1317/2010. Fakir Mohd. Abdul Aziz Choudhari -: versus :- Rizvana Abdul Gaffar WRIT PETITION NO. 1318/2010. Fakir Mohd. Abdul Aziz Choudhari -: versus :- Rizvana Abdul Gaffar Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. DATED : APRIL 27, 2010. This Court has on 19.03.2010 issued notice for final disposal. Accordingly I have heard Shri R. Joshi, learned counsel for petitioner and Shri P.U. Nandanwar, learned counsel for respondents. Shri Joshi, learned Counsel for petitioner contends that earlier in Writ Petition Nos. 4071/2008 and 4072/2008 this Court has on 14.11.2008 interfered and remanded the matter back to the Appellate Court with liberty to petitioners to file fresh applications. Accordingly fresh applications have been filed and those applications are rejected on irrelevant reasons. He points out that the applications moved by the petitioners are supported by affidavit and reply filed by present respondents is not on affirmation. He further states that in such circumstances, 2 the insistence on filing of affidavit of brother with whom the document was found is uncalled for, particularly when shifting of said brother from Umred to Nagpur is not in dispute. He further states that the reason of not mentioning cleaning of cupboards specifically by said brother assigned by Appellate Court is also misconceived. Shri Nandanwar, learned counsel on the other hand relies on the reply affidavit placed on record and states that after full trial and adverse verdict the appeals have been filed by the petitioners. In those appeals the document of mutual partition is sought to be introduced and it changes the entire nature of controversy. He argues that if such document was to be introduced, appropriate pleadings ought to have been there and as affidavit of brother Mohd. Mustaq is not on record, lower Appellate Court has rightly refused to believe that document was with Mohd. Mustaq. He therefore, contends that the impugned order calls for no interference. The facts show that the suits filed by present petitioners are for declaration, possession and permanent injunction. Those suits have been dismissed and Regular Civil Appeals preferred by them are pending. In those appeals the document of mutual partition is sought to be filed by filing application under Order 41 Rule 27 of C.P.C., and necessary pleadings on its basis are sought to be added by moving the application under Order 6 Rule 17 of C.P.C. In fact because of the nature of controversy and pleadings sought to be added common application under Order 6 Rule 17 read with Order 41 Rule 27 of C.P.C. has 3 been preferred. Petitioners have disclosed that brother Mohd, Mustaq earlier residing at Umred, shifted to Nagpur and after shifting he started cleaning the house and while cleaning he got that document. This assertion on affidavit has not been countered by filing appropriate affidavit by respondent. Respondents have no where denied shifting of Mohd. Mustaq from Umred to Nagpur. In this situation when petitioner could not have gained anything by not producing such document earlier, the trial court could not have rejected the prayers only because affidavit of Mohd. Mustaq has not been filed. When the fact of cleaning of house by said Mohd. Mustaq is pleaded, non disclosure of cleaning of cupboard is not very relevant. The appreciation of controversy by the lower Appellate Court is therefore erroneous and unsustainable. Contention of Shri Nandanwar, learned counsel about the effect of the said document pertains to merits of the controversy and merits of amendment or then merits of the said document are not relevant at this stage. The relevance of the document is not in dispute. In view of these findings the impugned order [common] dated 14.01.2010 is hereby quashed and set aside. Application at Exh. 15 in Regular Civil Appeal No. 447/2007 and at Exh.17 in Regular Civil Appeal No.448/2007 respectively are granted. Necessary amendment be carried out by the next date fixed before the lower Appellate Court. Liberty to respondent to carry out consequential amendment, if any, within a period of 15 days thereafter. 4 Writ Petition is allowed in the aforesaid terms. Rule accordingly. However, in the facts and circumstances of the case there shall be no order as to costs. JUDGE Rgd.