1 W.P. 9771............2011 - [ J ] IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 9771 OF 2011 Sadanand S/o Dattatraya Mahajan Age : 53 Yrs., Occ. Advocate, R/o : Gandhinagar, Padampura, Aurangabad. .....PETITIONER V E R S U S Aavinash S/o Dattatraya Mahajan Age : 43 Yrs., Occ. Pensioner, R/o : At Prachi Eldekar Colony, Vasmat Road, Parbhani. ..... RESPONDENT Mr. A.A.Joshi, Advocate for the Petitioners. Mr. S.P.Deshmukh, Advocate for the respondent. WITH WRIT PETITION NO. 9772 OF 2011 Sadanand S/o Dattatraya Mahajan Age : 53 Yrs., Occ. Advocate, R/o : Gandhinagar, Padampura, Aurangabad. ..... PETITIONER V E R S U S 2 W.P. 9771............2011 - [ J ] Aavinash S/o Dattatraya Mahajan Age : 43 Yrs., Occ. Pensioner, R/o : At Prachi Eldekar Colony, Vasmat Road, Parbhani. ..... RESPONDENT Mr. A.A.Joshi, Advocate for the Petitioners. Mr. S.P.Deshmukh, Advocate for the respondent. CORAM : S.V.GANGAPURWALA, J. DATE OF JUDGMENT : 21/12/2011. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing. 2. Heard the learned counsel for the respective parties. 3. The present Writ Petitions are filed by the appellant against the order passed on an application in the Appeals preferred by him against the Judgment and decree passed by the trial Court. The application under Order XLI Rule 27 of the Code of Civil Procedure [ For short, ‘ the Code ’] was filed by the appellant for production of the documents. The said applications came to be rejected. 4. Mr. Joshi, the learned counsel for the petitioner canvassed his 3 W.P. 9771............2011 - [ J ] arguments on the admissibility of the documents and the fact that the test as laid down under Order XLI Rule 27 of the Code are satisfied. 5. Mr. Deshmukh, the learned counsel for the respondent relies on the Judgment of the Apex Court in the case of Haryana State Industrial Development Corporation V/s N.S. Cork Manufacturing Co. reported in AIR 2008 SC – 56 and submits that the trial Court has properly considered all the ingredients and rightly rejected the application. 6. The Apex Court in the case of State of Rajastan V/s T.N.Sahani reported in 2001 ( 10 ) SCC – 619 and in another Judgment in the case of Mallyalam Plantation Ltd. V/s State of Kerala and another reported in 2011 SCW – 264 has held that an application under Order XLI Rule 27 of the Code is an application in Appeal and the same has to be considered along with the Appeal. 7. In view of the aforesaid dictum of the Apex Court, I am not inclined to refer to the arguments on the merits of the application and the order. As the said applications are decided dehors the Appeal, the orders passed on the said application can not be sustained and the impugned orders rejecting the application of the petitioner for additional evidence is 4 W.P. 9771............2011 - [ J ] quashed and set aside. The District Court shall decide the applications filed by the petitioner under Order XLI Rule 27 of the Code in the respective Appeals along with the Appeal. 8. Rule is accordingly made absolute. No costs. 9. Needless to state that I have not considered any of the submissions on the merits of the order or of the said applications. [ S.V. GANGAPURWALA,J. ] KNP/W.P. 9771............2011 - [ J ]