1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4632 OF 2009 Digambar Bhagwan Bhalkikar and Ors. .... Petitioners Vs. Ratilal Hansraj Desai & Anr. .... Respondents Mr. A.A. Kumbhakoni, i/b. Mr. A.P. Kulkarni for the Petitioners. Mr. A.B. Borkar i/b. Mr. P.G. Sarda for Respondent Nos.1 and 2. CORAM : A.S. OKA, J. DATE : 30 TH SEPTEMBER, 2009. P.C. : 1. Heard learned Counsel appearing for the petitioners and the learned Counsel appearing for the first and second respondents. Writ Petition is taken up for final disposal in terms of the earlier order. 2 2. The petitioners are the original plaintiffs and the respondents are the original defendants. A suit for possession was filed by the petitioners against the respondents under the provisions of Maharashtra Rent Control Act, 1999 on the ground of arrears of rent, permanent construction etc. The trial court decreed the suit. An appeal was preferred by the respondents before the District Court. An application was made at Exhibit 34 by the respondents by invoking Rule 27 of Order XLI of the Code of Civil Procedure, 1908. In the said application, it was contended that one of the grounds for eviction is arrears of rent. It is contended that in application for fixation of standard rent, certain amounts were deposited by the respondents as alleged in paragraph 2 of the said application. It is pointed out that the receipts issued by the Court of deposit of various amounts have been already filed on record of the Appeal by the respondents. 3 Permission was sought to lead additional oral and documentary evidence for establishing the deposit of rent and interest amount with the trial court. By the impugned order, the said application has been allowed. The operative part of the impugned order reads as under : "(a).The application is partly allowed. (b).The appellants (i.e. original defendants) are hereby allowed to produce additional evidence by way of affidavit and receipts described in list Exh. No.26. (c).The additional evidence shall be produced before this Court on 1-4-2009. (d).The respondents (original plaintiffs) will be at liberty to rebute the aforesaid additional evidence by way of cross- examination or by production of additional evidence only to the extent of default in payment of rent by appellants (i.e. original defendants)." 4 3. The learned Counsel appearing for the petitioners submits that the appellate court could not have allowed the respondents to adduce additional evidence as the said evidence was available to the respondents during the pendency of the suit. He submitted that there was no occasion for the District Court to permit the respondents to lead evidence by filing an affidavit in lieu of examination-in-chief. He criticized the impugned order by pointing out that even the scope of cross-examination has been erroneously restricted by the appellate court. 4. The learned Counsel appearing for the respondents submits that the respondents desire to prove deposit of various amounts by them in the standard rent application. He submitted that the receipts of the amounts deposited by the respondents have already been permitted to be filed on record of the appellate court. He submitted that the respondents desire to prove deposit of various amounts 5 with the trial court and, therefore, if the said receipts are ordered to be read in evidence, it will not be necessary for the respondents to lead any further evidence on that aspect. 5. I have carefully considered the submissions. The receipts of the amounts allegedly deposited by the respondents have been already placed on record of the appellate court. It is stated that the receipts are the original receipts issued by the Registry of the concerned Court. The said receipts will have to be obviously read in evidence. If the said receipts are read in evidence, obviously there will not be any necessity of leading any further evidence to prove the deposit of the amounts allegedly made by the respondents. 6. Hence, the Writ Petition is disposed of by passing following order : 6 “O R D E R” (i).The impugned order dated 17th March, 2009 passed by the learned District Judge-4, Solapur in Civil Appeal No.105 of 2007 is modified. (ii).The receipts produced by the respondents shall be exhibited and shall be read in evidence. (iii).Hence, permission granted by the appellate court to the respondents to produce additional evidence by way of affidavit deserves to be quashed and set aside and accordingly said part of the order is quashed and set aside. 7 (iv).It is obvious that all issues regarding the effect of the deposits allegedly made by the respondents will be considered by the appellate court in accordance with law. (v).The Writ Petition is disposed of in above terms. A.S. OKA, J.