1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.127 OF 2011 SMT. NATALIA S. REBELLO AND 8 ORS. …. Petitioners V/S SMT. NELLY REBELLO AND 5 ORS. …. Respondents. Mrs. A. A. Agni, Advocate for the Petitioners. Shri Agnelo F. Diniz, Advocate for Respondent No.1. CORAM : F.M. REIS, J. DATE : 2nd DECEMBER, 2011 ORDER: Heard Mrs. A. Agni, learned Counsel appearing for the petitioners and Shri A. F. Diniz, learned Counsel appearing for respondent no.1. 2. The respondents were served for final disposal at the time of admission. 3. The above petition challenges the order passed by the lower Appellate Court whereby an application under Order 41 Rule 27 (1) (b) filed by the petitioners to lead additional evidence came to be rejected. 2 4. Mrs. A. Agni, learned Counsel appearing for the petitioners has assailed the impugned order by pointing out that the petitioners desired to examine Shri Vikas Dessai, who had prepared a plan marked 'X' for identification as additional evidence before the lower Appellate Court which was disallowed by the impugned order. Learned Counsel further pointed out that in an application filed by the petitioners there were justifiable reasons recorded by the petitioners which prevented the petitioners from examining Shri Vikas Dessai due to legal advise. Learned Counsel has further taken me through the impugned order and pointed out that the learned Judge has erroneously come to the conclusion that the application filed by the petitioners was under Order 41 Rule 27 (a) of the Civil Procedure Code when on the contrary the relief sought by the petitioners was within the provisions of Order 41 Rule 27 (b) of the said Code. Learned Counsel further points out that the law is well settled by the Apex Court that such application for additional evidence are to be considered only at the final disposal of the appeal and, as such, the impugned order deserves to be quashed and set aside. Mrs. Agni, learned Counsel appearing for the petitioners has relied upon the judgment of this Court in 2007 (SUPP.) Bom.C.R. 70 in the case of Dagdoba Tryambak Muley & 3 Anr. V/s. Mainabai Harchand Rajput & Ors. and on the judgment of the Apex Court reported in 2011 (AIR) SCW 264 in the case of Malayalam Plantations Ltd. V/s. State of Kerala & Anr. 5. On the other hand, Shri A.F. Diniz, learned Counsel appearing for respondent no.1 has disputed the contentions raised by the learned Counsel appearing for the petitioners. Learned Counsel pointed out that the law is well settled by the Apex Court that this Court should not interfere in exercising jurisdiction under Article 227 of the Constitution of India wherein application for additional evidence have been rejected as such orders can be challenged after the time of final disposal of the First appeal. Learned Counsel further submitted that the learned Judge after appreciating the evidence on record has come to the conclusion that the document sought to be produced is not required for disposing of the appeal and, as such, the question of seeking any relief to lead additional evidence under the provisions of Order 41 Rule 27 (b) of C.P.C. does not arise at all. In support of his submissions, the learned Counsel has relied upon the judgment of the Apex Court reported in AIR 1997 SC 3573 in the case of Atmaram Zingaraji V/s. State of Maharashtra, judgment of this 4 Court reported in 2005 (2) Bom.C.R. 65 in the case of Prabhakar Nene (dead) through legal representative Vishwas Prabhakar Nene & Anr. V/s. Shree Nagpur Geeta Mandir Trust, 2001 (1) SCC 309 in the case of Mahavir Singh V/s Naresh Chandra and judgment of the learned Single Judge of this Court passed in Writ Petition No.66/2007 dated 6/07/2007. 6. Having heard the learned Counsel and on perusal of the record, I find that the learned Judge while passing the impugned order has come to the conclusion that the petitioners have failed to satisfy the requirements of the provisions of Order 41 Rule 27 for leading additional evidence in the appeal. Learned Judge has also come to the conclusion that the document intended to be produced is not required for the purpose of deciding the appeal preferred by the petitioners. On the face of such findings by the learned Judge in the impugned order, I find that Shri Diniz, the learned Counsel appearing for the respondent no.1 is justified to contend that this Court should not interfere by exercising its jurisdiction under Article 227 of the Constitution of India in the impugned order. The petitioners are always at liberty to challenge the impugned order in an appeal in case any adverse judgment is passed against them at the time of final disposal of the First Appeal preferred before the 5 lower Appellate Court. 7. The Apex Court in the case of Mahavir Singh (supra) has also come to the conclusion that such orders cannot be interfered by this Court at this stage, but liberty should be given to the petitioners to challenge such order in case any appeal which arises at the final disposal of the appeal by the Lower Appellate Court. In the judgment of this Court in the case of Prabhakar Nene (dead) through legal representative Vishwas Prabhakar Nene & Anr. (supra), this Court has also taken the same view. As such, keeping liberty of the petitioners to challenge the impugned order in any appeal in case any adverse judgment is passed at the time of final disposal of the appeal by the lower Appellate Court, I find that there is no reason to interfere with the impugned order passed by the learned Judge dismissing the application filed by the petitioners without expressing any opinion on merits. 8. With regard to the contention of Mrs. Agni, learned Counsel appearing for the petitioners that the learned Judge ought to have decided the application only at the stage of final disposal of the appeal on merits, I find that no such request nor submission was advanced by the petitioners before the lower Appellate Court while 6 considering the application filed by the petitioners. As such, the records reveal that petitioners have taken a chance in allowing the application to be decided by the Court before the final arguments in the First appeal. The unreported judgment of this Court passed in Writ Petition No.66/2007 has also taken the view that in cases in which the petitioners have taken a chance, such contentions cannot be allowed to be raised by the petitioners before the High Court. But however, considering that liberty has been reserved for the petitioners to challenge the impugned order referred to above, I find that no prejudice will be caused in case the impugned order stands at this stage. 9. Mrs. Agni, learned Counsel has also produced the evidence of PW2. The document sought to be relied upon was marked 'X' for identification during the course of the evidence of PW1, but however, on perusal of the evidence of PW2 especially in the cross-examination of such witness, I find that the correctness and/or authenticity of such document was being challenged by the respondents during the course of his cross-examination. When such document was being tested in the cross-examination, it was incumbent upon the learned Trial Judge first to mark the said document as exhibit and thereafter proceed with the cross- 7 examination. As such, I find that the document marked 'X' for identification is to be read in evidence in context with the said evidence of PW2. Shri Diniz, learned Counsel appearing for the respondent no.1 does not dispute the said proposition that such document had to be marked as an exhibit before any cross examination was permitted by the learned trial Judge of PW2 on the said document. Whether the contents of such document have been proved is a matter which would have to be ascertained while appreciating the evidence on record. 10. Subject to the above and with the liberty as reserved to the petitioners, I find that there is no case made out for interference in the impugned order and, as such, the above petition stands dismissed accordingly. F.M. REIS, J. NH/-