1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.1097 OF 2005 WITH CIVIL APPLICATION NO.1599 OF 2005 WITH CIVIL APPLICATION NO.1312 OF 2009 Shri Vitthal B. Gund ...Appellant. v. Smt. Parvatibai M. Gund & Ors. ...Respondents. Mr. Nitin Mulye, adv. For the Appellants. Mr.Uday P. Warunjikar, adv. For the Respondent Nos.1 and 2. CORAM : J.H. BHATIA, J. DATED : 15th October , 2009 P.C. 1 Heard the learned counsel for the parties 2 This is the second appeal filed by the original defendant no. 1 challenging the decree passed by the trial Court and confirmed by the First Appellate Court for partition and separate possession in favour of the plaintiffs/respondents. The appellant has filed Civil Application No. 1312/09 before this Court seeking production of certain documents, which according to him go to the root of the matter and go to show that the defendant/appellant was exclusive owner of the suit property and that property is self acquired property. It is contended that the originally house bearing City Survey No.601 situated at Kasba Peth was the joint 2 family property of the three brothers, who had sold away the same to one Bapu under the registered sale deed dated 23rd November, 1931 and after that there was no joint family or joint family property. It is contended that in 1943 some property was purchased by Baburao Gund, father of the defendant/appellant. It is contended that the property bearing C.S.No.598, also situated at Pune, was allotted to said Baburao Gund under the Kabuliyat by the Government in 1945. It is contended that these documents were not available to the defendant/appellant when the matter was pending before the trial Court. During the pendency of the Regular Civil Appeal No.54/02 the defendant/appellant had filed application, Exhibit 26 seeking production of the sale deed dated 23.11.1931 to show that joint family property bearing survey no.601 was already sold away in 1931. It was contended that this document was found in the old trunk of his father after a long search during the pendency of that appeal. However, that application was rejected and production was refused. Before this Court, besides that application, copy of the Kabuliyat and certain other related documents are sought to be produced. It is contended that these documents were searched and found during the pendency of the present appeal and these documents go to the root of the case, therefore, permission is sought under Order 41 Rule 27 3 of the C.P.C. for production of these documents. Application is opposed by the plaintiff/respondents. 3 After hearing the parties, it appears that documents are relevant for proper adjudication of the disputes between the parties and possibly they may go to the root of the case also, of course, subject to the oral evidence, which may be led by the parties in respect of those documents and related circumstances. However, it has to be borne in mind that the suit was filed by the plaintiff/respondents in 1995 and litigation is now before the High Court, i.e., the Third Forum. Plaintiffs have been put to costs of litigation before the First Appellate Court and then before this Court. If now production of documents is allowed, matter has to be remanded for fresh hearing, that will again put the plaintiff to additional cost of litigation. Once, the production of those documents is allowed, the Regular Civil Appeal No.54 of 2002 will have to be remanded back to the First Appellate Court so that parties may be given an opportunity to lead the evidence and to prove those documents and the appeal may be decided afresh. 5 Therefore, subject to payment of cost of Rs.15,000/- by the defendant/appellant to the plaintiffs/respondents within four weeks from this date, Civil Application No.1312/09 is allowed in terms of prayer 4 clause (a) and the application stands disposed off. In the result, this second appeal is also allowed and the Regular Civil Appeal No.54/02 is hereby remanded back to the District Court, Pune for hearing the appeal afresh. Documents, which are filed before this Court be remitted back to the First Appellate Court. They being the copies of the original, relevant originals or certified copies shall be produced before the First Appellate Court by the appellant. The District Court shall appoint a commissioner for recording evidence of both the parties in respect of those documents and related circumstances. The Commissioner shall be directed to submit a report with evidence that may be recorded by him within three months from the date of appointment order and after Commissioner’s report is submitted, District Court shall hear the parties and dispose off civil appeal finally within three months thereafter. Commissioner’s fee shall be borne by defendant/appellant. In case, amount of cost is not paid or deposited before the First Appellate Court within four weeks from this date, Civil Application No.1312/09 as well as Second Appeal No. 1097/05 shall be deemed to have been dismissed. 6 As the Second Appeal itself is disposed off, Civil Application No.1599/05 for stay does not survive and stands disposed off accordingly. 5 (J.H. BHATIA,J.)