1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5495 OF 2009 Uttamchand K. Jain Petitioner versus Dilip Hemumal Chandnani and others Respondents Sandesh D. Patil for petitioner. B.R.Zaveri for respondent no.2. CORAM : A.S.OKA, J. DATE : 24th July 2009 PC :- 1. Heard learned counsel for the petitioner and learned counsel for the respondents. The petitioner is the original plaintiff and the respondents are the original defendants. The plaintiff filed a suit for a declaration and injunction. An application was taken-out in the said suit for temporary injunction. The application for temporary injunction was decided on 26th September 2008 by partly allowing the same. An appeal against the said order was filed by the contesting respondents before the District Court. In the said appeal an application was made by the petitioner under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence. By the impugned order, the said application has been rejected by the learned District Judge. 2. The submission of the learned counsel for the petitioner is that the learned District Judge has not considered the application on merits as the learned District Judge has come to the conclusion that the application was not maintainable as the appeal has been filed under Order XLIII of the 2 said Code of 1908, and not under Order XLI of the said Code. The opposition to the said application by the contesting respondents was by pointing out that the appeal was argued on 18th March 20909 and was fixed for judgement on 19th March 2009. In the reply filed by the appellants in the said appeal it is pointed out that on 31st March 2009 the appeal was again argued and was fixed for judgement on 4th April 2009 and the present application was made on 21st April 2009. 3. I have considered the submissions. This is a petition under Article 227 of the Constitution of India. The jurisdiction under Article 227 of the Constitution of India is an extraordinary jurisdiction where this Court exercises the power of superintendence. It is not necessary that in case of every illegality this Court should interfere. 4. The application under Order XLI, Rule 27 of the said Code was made for directing the Municipal Corporation which was a party defendant to the suit to produce certified copy of a building permission. Reliance was placed on averments made in the plaint by the petitioner relating to the letter dated 28th August 2008 which has a reference to the said building permission. 5. The suit was filed in September 2008. The application for injunction was disposed of on 26th September 2008. It appears that the appeal was argued in March 2009. The letter dated 28th August 2008 has been relied upon in the plaint filed by the petitioner himself. The said letters refer to the building permission about which a direction was sought by filing the application for additional evidence. Admittedly till date, a notice to produce the said document has not been given in the suit by the petitioner to the Municipal Corporation which is a party defendant. The appeal before the learned District Court is not a regular appeal against a decree but against an order passed on application for temporary injunction. The application was made only after the appeal was adjourned on two occasions for pronouncement of judgement. The interim orders 3 under Rules 1 and 2 of Order XXXIX of the said Code are never final in the sense that in case of change in circumstances, the parties can always apply under sub Rule 4 of Order XXXIX of the said Code. The Apex Court has repeatedly observed that the scope of appeal against the discretionary order like an order under Rules 1 and 2 of Order XXXIX of the said Code is limited as compared to the regular appeal against a regular decree. In the present case an application was made by the petitioner at a very belated stage. Earlier the appeal was placed on two occasions for pronouncement of judgement. It is not as if that the petitioner was not aware of the document. The said document was referred to in the letter which is relied upon in the plaint. The Appellate Court was justified in rejecting the said application. 6. As far as second aspect is concerned, it is obvious that the learned District Judge is wrong. Rule 2 of Order XLIII of the said Code provides that all provisions of Order XLI shall apply to appeals under Rule 1 of Order XLIII of the said Code to the extent to which they are applicable. The learned Judge has totally ignored the provisions of Rule 2 of Order XLIII of the said Code and the observation made by the learned Judge to that extent is wrong. An application under Rule 27 of Order XLI of the said Code of 1908 is maintainable in an appeal under Rule 1 of Order XLIII of the said Code of 1908. 7. This is not a case where interference can be made in a petition under Article 227 of the Constitution of India. The writ petition is rejected. However, it is made clear that the observations made in this order are for limited purposes for examining the legality and validity of the impugned order and the none of the observations made herein shall be construed as any findings on merits. (A.S.OKA, J.)