[ 1 ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.2735 OF 2008 U. RAGVENDRA ACHARYA & ANR. ... PETITIONERS. VS. SWARNA KAPOOR ... RESPONDENT. MR. NARENDRA WALAWALKAR SR. COUNSEL WITH R.M.NAKHAWA I/B. VASANT DHAWAN FOR THE PETITIONERS. MR. T. RADHAKRISHNA FOR RESPONDENT. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. DATE DATE DATE : June 3, 2008. : June 3, 2008. : June 3, 2008. P.C. 1. This petition is directed against the order dated 31st March, 2008 passed by the Appellate Bench of Small Causes Court at Bombay, whereby the application of the respondent seeking permission of the court to produce the certified copies of the notes of evidence in R.A.E. & R Suit No. 685/1165/2001 and in R.A.E. & R. Suit No. 686/1166/2001, certified copy of writ petition No. 580 of 2007, letters dated 1st November, 2007 and replies thereto and letter dated 18th June, 2007 and reply to the same, came to be allowed. While allowing the application to produce the certified [ 2 ] copies of the said documents, the Appeal Court has observed that the same is allowed without prejudice to the rights and contentions of both the parties and the question of relevancy and admissibility of these documents is kept open and the same will be decided at the time of disposal of the Appeal itself after giving full opportunity to both the parties on the said issues. 2. It is to be noted that the present application seeking to produce the abovestated documents has been filed in the Appeal. Vide order dated 31st January, 2008 in a writ petition filed earlier by the petitioners, a Division Bench of this Court had expedited the hearing of the Appeal interalia on the ground that the petitioner No.1 was 75 years of age and a senior citizen. On this background, the impugned order came to be passed and the fact that the Appeal was to be disposed of on or before 31st July, 2008 has obviously weighed with the Appeal Court while deciding the application of the respondent, else the appeal court would have, in the normal course, decided the application including the issue of admissibility and relevancy of the documents sought to be relied upon prior to deciding the Appeal itself. 3. The learned Sr. Counsel for the petitioners sought to argue that the suit is of the year 2001 and the petitioner No.1 being a senior citizen, his anxiety [ 3 ] is that the matter is unnecessarily being prolonged and that the petitioner No.1 desires to see the fruits of the litigation during his lifetime and the application made by the respondent is not bona fide. He submitted that the documents which are sought to be produced are irrelevant and that in any event the production of documents cannot be allowed at the stage of Appeal to fill in any lacunae, which may have remained at the stage of trial of the suit. To fortify this contention, the learned Sr. Counsel has relied upon the decision in case of STATE OF GUJARAT & ANR. VS. STATE OF GUJARAT & ANR. VS. STATE OF GUJARAT & ANR. VS. MAHENDRAKUMAR MAHENDRAKUMAR MAHENDRAKUMAR P. DESAI, reported in (2006) 9 SCC 772 P. DESAI, reported in (2006) 9 SCC 772 P. DESAI, reported in (2006) 9 SCC 772. 4. He further submitted that the documents which are sought to be produced are not annexed to the application and the Appeal court had no opportunity to examine those documents. It is also submitted that the day on which the application was presented, the petitioners were called upon to reply to the same on the application itself and no opportunity was given to the petitioner to file proper reply to the application though the application was affirmed few days earlier. Moreover, since the documents sought to be produced were not annexed to the application the petitioner did not get an opportunity to deal with the same. The learned Sr. Counsel submitted that the petitioners would have no opportunity to explain the circumstances under which the alleged admissions which are sought to be relied upon in the notes of evidence, sought to be [ 4 ] produced are made by the petitioners, and the possibility of remand of the matter by the Appeal Court, so as to take further evidence cannot be ruled out, which would further delay the matter. He, therefore, submitted that the application was not bona fide. It is further contended by him that notes of evidence could have been produced by the respondent at the stage of the trial of the suit itself and the respondent has not been diligent in the matter and the Appeal Court ought not to have shown any indulgence to the respondent. 5. The learned Sr. Counsel for the petitioners has invited my attention to the provisions under Order 41 Rule 27 of the Code of Civil Procedure, which deals with the circumstances under which the appeal court can allow the production of additional evidence, and submitted that there is clear restriction under Rule 27 of Order 41 that the parties shall not be entitled to produce additional evidence whether oral or documentary in Appeal and certain exceptions have been carved out vide provision (a) (aa) & (b). The learned Senior Counsel for the petitioner relied upon a decision in case of MUNDRILAL VS. SUSHILA RANI (SMT.) REPORTED IN MUNDRILAL VS. SUSHILA RANI (SMT.) REPORTED IN MUNDRILAL VS. SUSHILA RANI (SMT.) REPORTED IN 2007(8) 2007(8) 2007(8) SCC 609 SCC 609 SCC 609 and, invited my attention to the observations made in paragraph 21 of the said decision, which reads thus :- "The appellant’s application for adduction of [ 5 ] additional evidence has been rejected on valid grounds by the High Court. It, for cogent and sufficient reasons, refused to exercise its discretionary jurisdiction. We do not see any reason to interfere therewith. Even if the purported admission was made by the respondent and a subsequent pleading was to be taken into consideration, still then the respondent was required to be cross-examined. Another round of litigation would have started. We do not think that the appellant has made out a case for grant of such indulgence." Placing reliance on this judgment, the learned Senior Counsel for the petitioners contended that the Appeal Court ought to have rejected the application of the respondent and that in the facts of the present case, Rule 27 of Order 41 of the CPC is not attracted and the application of the respondent for taking the documents on record ought to have been rejected by the Appeal Court. 6. The learned Counsel for the respondent, on the other hand, has submitted that the impugned order has been passed without prejudice to the rights and contentions of the parties, leaving open the question of admissibility and relevancy of the documents and that no prejudice would thus be caused to the petitioners. He has invited my attention to the [ 6 ] observations made in the impugned order, which are as follows :- "In our view, if we allow the production of these documents simplicitor without prejudice to the rights and contentions of both the parties, no prejudice would be caused to the Respondents. We are also of the opinion, in order to save the court’s time and enable us to hear the matter expeditiously as per the order of the Hon’ble High Court of Judicature at Bombay, it would be just and proper to keep open the question regarding the admissibility and relevancy of these documents and the appellant can be permitted to produce the certified copies of these documents. The Appeal Court in its order has also observed that the admissibility and relevancy of these documents will be decided at the time of final disposal of the appeal after giving full opportunity to both the parties on these questions. 7. I have considered the rival contentions of the parties and perused the impugned order and other material on record. I find that what has weighed with the Appeal court was the order dated 31.01.2008 passed by the Division Bench of this Court, directing the Appeal Court to decide the Appeal within six months, [ 7 ] which period expires on 31st July, 2008. On perusing the impugned order, I find that the Appeal court has allowed the production of the documents without prejudice to the rights and contentions of the parties and the question of admissibility and relevancy of the documents has been kept open. However, it is noted that the copies of the documents, which were sought to be produced were not annexed to the application. It is further noted that the petitioner did not get an opportunity to peruse the said documents nor did the petitioner get an opportunity to prepare a proper affidavit in reply to the application. 8. Considering the facts and circumstances of the case , in my opinion, the impugned order cannot be faulted. I have no manner of doubt that the Appeal court while passing the final orders in the Appeal would consider various provisions of law including the provisions of order 41 Rule 27 of the CPC. However, to meet the ends of justice, notwithstanding the fact that the application is in a sense allowed, it would be appropriate to direct the respondent to forward to the petitioner copies of the documents which are sought to be produced by him in the Appeal court and it would be further necessary to allow the petitioner to file a proper affidavit in reply to the application, after considering the documents which are forwarded to him. The documents to be forwarded by the respondents to the petitioners on or before the 10th of June, 2008 and the [ 8 ] affidavit-in-reply, if any, of the petitioner be filed on or before 17th June, 2008. I further deem it fit to request the Appeal Court to frame specific issues in the points for determination in their final Judgment in the Appeal, with regard to the admissibility and relevancy of the said documents. The Appeal court would consider the reply filed by the petitioners before arriving at its conclusions in the Appeal. Permissibility or otherwise of the production of the documents would be first considered by the Appeal Court before arriving at other findings. No doubt the subsequent event of filing of the application has prolonged hearing of the appeal; the parties, however, would be at liberty to approach the Division Bench of this Court for seeking extension of time for disposal of the Appeal, if the Appeal Court is unable to dispose of the Appeal by the end of July, 2008 pursuant to the order passed by the Division Bench of this Court on 31.1.2008. 9. Initially, I did consider directing the Appeal Court to decide the admissibility and relevancy of the documents first before hearing of the Appeal; however, that would unnecessarily entail another round of litigation which can be avoided, particularly, in light of the order of the Division Bench of this Court, directing the Appeal court to decide the Appeal finally by the end of July, 2008 after having considered the [ 9 ] age of the petitioner who is 75 years old and a senior citizen. 10. In view of the aforesaid discussion, the impugned Order shall stand modified to the abovesaid extent and the petition shall stand disposed of. ..... [A.A.Sayed, [A.A.Sayed, [A.A.Sayed, J.] J.] J.]