( 1 ) wp4130.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4130 OF 2011 Bhanudas s/o. Kisan Waghmare Age. 58 years, Occ. Buness & Agri., R/o. Manjar Sumba, Tq. Nagar, Dist. Ahmednagar. .. Petitioner VERSUS 1. Ahelaji s/o. Gangaram Kadam, Age. 59 years, Occ. Agri., .. Respondents 2. Laxman s/o. Gangaram Kadam, Since deceased through LRs. 2A) Shankarrao s/o. Laxman Kadam, Age. 65 years, Occ. Agri., R/o. House No. 301, Chandralok Apartment, Delhi Gate, Ahmednagar, Dist. Ahmednagar. 2B) Vishwanath s/o. Laxman Kadam, Age. 53 years, Occ. Agri., 2C) Pandurang s/o. Laxman Kadam, Age. 50 years, Occ. Agri., 2D) Tukaram s/o. Laxman Kadam, Age. 40 years, Occ. Agri., No. 2B to 2D R/o. Survey No. 292/2, Bhistbag, Savedi, Ahmednagar, Dist. Ahmednagar. 2E) Asarabai w/o Parasram Nawale, Age. 45 years, Occ. Agri., R/o. Village Gunjale, Tq. Rahuri, Dist. Ahmednagar. 2F) Dropadabai w/o. Eknath Kale, Age. 38 years, Occ. Agri., R/o. Dehare, Tq. & Dist. Ahmednagar. 2G) Mangal w/o. Ramesh Pawar, Age. 35 years, Occ. Agri., R/o. Hiware ( 2 ) wp4130.11 Bazar,Tq. & Dist. Ahmednagar. 3. Gopinath s/o. Gangaram Kadam, Deceased through LRs. 3A) Keshav s/o. Gopinath Kadam, Age.Major, Occ.Medical Practitioner, Agri. R/o. Wambori, Tq. Rahuri, Dist. Ahmednagar. 3B) Shivaji s/o. Gopinath Kadam, Age. Major, Occ. Agri. Respondent No.1,2 and 2B R/o. Manjar Sumba, Tq. Nagar, Dist. Ahmednagar. Mr. Sandeep S. Deshmukh, Advocate for the petitioner; Mr. N.V. Gaware, Advocate for the respondents. CORAM : A.V. NIRGUDE, J. DATED : 30.09.2011 ORAL JUDGMENT :- 1. Rule. Rule made returnable forthwith and with the consent of learned Counsels appearing for the parties, the petition is heard finally at the stage of admission. 2. This writ petition is filed against the order dated 08.04.2011, in Regular Civil Appeal No. 138 of 2005, which is still pending before the First Appeal Court. The application on which the impugned order was passed was in-fact quite innocuous one. 3. The facts of the litigation are as under :- 4. The petitioner is the appellant before the Lower Appellate Court and was also the plaintiff at the trial ( 3 ) wp4130.11 stage. The cause of action for his suit was that he is owner of the suit property and that through two sale- deeds dated 01.05.1967 and 24.05.1969 he mortgaged the suit property in favour of respondent No.1 Ahelaji. Both these documents were styled as sale-deed. He said that though the tenor of the document apparently showed that it was a transaction of sale, but the real intention of the parties was creating a mortgage. The respondents, who are the defendants in the Trial Court, admitted the execution of the two documents referred to above, but did not produce them on record. However, the certified copy of 1969 document was brought on record and was exhibited also. The document of 1967 was not brought on record because the petitioner/plaintiff could file its photostat copy only. The learned Judge of the Trial Court refused to accept it. Ultimately, the suit was dismissed and the appeal was filed during the pendency of this appeal the petitioner as said above moved an application under Order 41 Rule 27 seeking permission to adduce additional evidence. He sought permission to produce on record certified copies of documents of 1967 and 1969. The learned Judge refused such permission saying that the petitioner/appellant could not prove that despite due diligence he was unable to produce these documents on record of the Trial Court. Apparently, the approach of the learned Judge of the First Appeal Court while ( 4 ) wp4130.11 rejecting the application was erroneously. 5. As said above the respondents/defendants while they were before the Trial Court admitted the execution of the two documents. As said above, original sale-deeds of 1967 and 1969 ought to be with the purchaser/respondent No.1. He could have easily filed them on record in support of his case that there was no mortgage but out and out sale. Indeed, this is the defence of the respondents since beginning. There are several formidable defences raised by the respondent also. But I am not inclined to discuss them while deciding the writ petition. What is pertinent to note here is the fact that even at the trial stage both these documents ought to have been exhibited by the learned Judge of the Trial Court because the execution of the document is not denied by respondent No.1 in whose favour the documents were executed. So, when the petitioner could file only photostat copy of the document of 1967, respondent No.1 could have admitted it subject to accuracy of the copy. In view of this, the learned Judge of the First Appeal Court ought to have allowed the certified copy of the sale-deed of 1967 on record. He ought to have exhibited it. Since 1969 document is already exhibited at the trial stage, there was no reason for producing certified copy of document of 1969 again. 6. The learned Counsel appearing for the ( 5 ) wp4130.11 respondents opposed this writ petition mainly because he apprehended that if the permission to adduce additional evidence is given to the petitioner/appellant, he might make further request to the Appeal Court for remand of the case for adducing oral evidence. He further apprehended that if such permission is given, the litigation would unnecessarily get delayed. I would certainly eliminate this apprehension by directing the learned Judge by issuing necessary directions. Therefore, the writ petition should succeed partly. 7. The writ petition is allowed. The impugned order is corrected as under :- . The petitioner/appellant is allowed to furnish on record certified copy of document of 1967. However, he shall not be allowed to lead oral evidence in support of his case further. The learned Judge of the appeal Court shall decide the case assuming that the document of 1967 is exhibited at the Trial stage. The learned Judge shall decided the appeal as soon as possible. 8. Rule made absolute accordingly. [A.V. NIRGUDE, J.] snk/2011/SEP11/wp4130.11ok