1 WP-7935-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi WRIT PETITION NO. 7935 OF 2010 Balkrishna Sadashiv Pise ... Petitioner (Orig.Plaintif/Orig.Appellant) Vs. The State of Maharahtra & Ors. ... Respondents (Orig.Defendants/Orig.Respondents) Mr. Uday P. Warunjikar, Advocate, for the petitioner. Mr.K.B.Sonwalkar,Advocate for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 19th October, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The petitioner before this Court is the original plaintiff. He had filed Regular Civil Suit No. 480 of 1993 for a decree restraining the defendant/respondent from disconnecting electric supply, water supply and from taking over possession of the land under the Saw Mill run by the plaintiff. Admittedly, the land belongs to the Government. The suit was dismissed by the Judgment dated 19.9.2009. The plaintiff filed Regular Civil Appeal No.474 of 2010. In that Appeal, he filed application Exhibit 35 under Order 41 Rule 27 seeking production of five documents. They included NOC issued by the 2 WP-7935-10.sxw Industrial Inspector on 24.9.1991 and four different certificates issued by different authorities in 1993, 2003 and 2006. The learned appellate Court rejected the application for production of additional evidence. That order is challenged in the present Writ Petition. 3. Order 41 Rule 27(1) clearly provides that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court unless the case falls under clause (a), (aa) or (b). It does not fall under (a) because it is not the case of petitioners that the documents were sought to be produced before the Court and the trial Court had refused production thereof. It also does not fall under clause (b) because the appellate Court had never asked the petitioner to produce those documents. Under clause (aa), a party could file additional documents if he 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. None of these documents were very old. NOC was of 24.9.1991 and it appears to have been issued about two years before the suit was filed. Other four documents which are NOC and different certificates appear to have been issued during pendency of the suit in the years 1993, 2003 and 2006. In such circumstances, if the plaintiff felt that these documents were 3 WP-7935-10.sxw necessary, he could produce them. It cannot be said that that these documents were not within his knowledge nor it can be said that these documents could not be produced inspite of due diligence. His contention that these documents were traced out while searching old documents on 20.7.2010 cannot be believed. These were the documents which were secured by the plaintiff either shortly before filing of the suit or during pendency of the suit. Therefore, the case does not fall even under clause (aa). Therefore, I find no substance in the present petition. The petition stands dismissed. (J.H.BHATIA,J.)