1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 1333 OF 2010 *** Shaikh Abdul Nasar Abdul Latif Versus Shaikh Nanhu Shaikh Husain *** 1. Heard learned counsel for the Petitioner Mr. Bedre. Perused the order impugned. 2. It is not in dispute that the present petitioner/ defendant is suffering the decree of eviction passed by the learned 2nd joint Civil Judge, Junior Division, Ahmednagar in Regular Civil Suit NO.147 of 1999. The suit is indisputably under the provisions of Bombay Rent Control Act. Decree of eviction passed against the present petitioner has been challenged by the petitioner by filing Regular Civil Appeal No.259 of 2005. During the pendency of this appeal, present petitioner/ appellant filed an application requesting the first Appellate Court to direct the Respondent/ original plaintiff to produce the original reply notice which plaintiff had received through Advocate Shri 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. R. S. Bedre dated 23rd December, 1998. Counsel for the Petitioner points out para 4 of the plaint, the copy of which is not on record. This copy from his docket, he has made available to the Court for inspection. I have considered the submission that plaintiff has pleaded in para 4 of the plaint that he has received the reply notice from the Advocate of present Petitioner. Original copy of the reply notice is bound to be in possession of the addressee i.e. plaintiff, in the case on hand. The learned Judge rejected this application. The office copy of the reply notice allegedly served to the original plaintiff, must be either in possession of Advocate for the present Petitioner or the Petitioner himself. Such copy could have been produced on record. The first Appellate Court rejected the application holding that there was no such attempt on the part of the present Petitioner 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. when the suit was filed. In the opinion of the first Appellate Court, at this stage, evidence by this way, cannot be permitted to be led. 3. Additional evidence is a matter of Order 41 Rule 27 of the Code of Civil Procedure [the Code, for short]. Counsel for the Petitioner submits that if such liberty is granted to file appropriate application before the first Appellate Court, present petitioner may apply to the Court. In my view, such prayer can be considered by this Court i.e. granting liberty to the present petitioner to apply under Order 41 Rule 27 of the Code, if he desires to do so, for producing office copy of the reply notice dated 23rd December, 1998. 4. Petition stands dismissed being devoid of substance, however, considering the facts and circumstances liberty in favour of the present petitioner to file appropriate 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application under Order 41 Rule 27 of the Code before the first Appellate Court. In that circumstances, the first Appellate Court shall hear the parties and decide such application within the parameters of Order 41 Rule 27 of the Code. 5. It is made clear that this Court has not recorded opinion on merits. The first Appellate Court seized with the hearing of the appeal, shall hear the parties and if such application is filed by the petitioner, decide it on its own merits and expeditiously keeping in mind the pendency of the appeal of 2005 on the file of the first Appellate Court. 6. Rule discharged with liberty in favour of the petitioner, as above. [S.B.DESHMUKH, J.] Dated:04/03/2010. ans/1333