1 WP 9861/09 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9861 OF 2009 Satyedra Shantiswaroop Mahesh & Ors. .. Petitioners V/s Veena Investments Pvt. Ltd. & ors. .. Respondents Mr. J.R. Trivedi i/b L.J. Law for the petitioners. Mr. Sumit Raghani i/b PDS & Associates for respondent no.1. CORAM: D.G. KARNIK, J. DATE : 15TH JULY 2010 P.C. : 1. Heard. 2. By this petition, the petitioners challenge the judgment and order dated 1 September 2009 passed by the appellate bench of the Small Causes Court, Mumbai, rejecting the petitioners’ application for additional evidence in an appeal under Order 41 Rule 27 of the Code of Civil Procedure (for short “the Code”). 3. The petitioners are original plaintiffs. They filed a suit for possession against the respondents, inter alia, on the 2 WP 9861/09 ground of default in payment of rent. The suit was dismissed by the trial court. In an appeal filed by the petitioners, they made an application for leave to produce two documents. According to the petitioners, one of the documents is a letter written by the advocate for the petitioners and the other is reply to that letter issued by the respondents’ advocate. These documents would disclose that the respondents were in arrears of rent and default and, therefore, th documents were necessary. He further submitted that the letters were referred to in the plaint and xerox copies thereof were already produced on record in the trial court. As such, no prejudice would be caused to the respondents by allowing the production of those documents. Counsel also referred to and relied upon a decision of a Full Bench of this Court in Saindranath Jagannath Jawanjal v. Pratibha Shikshan Sanstha, 2007 LawSuit (Bom) 215 in support of his contention that the production of documents should have been allowed. 4. Order 41 Rule 27 of the Code, which permits the appellate court to allow production at the stage of appeal, reads thus: “27. Production of additional evidence in 3 WP 9861/09 Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” 4 WP 9861/09 Sub-Rule (1) of Rule 27 specifically states that parties to the appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. Proviso contains three exceptions to this Rule and they are provided in clauses (a), (aa) and (b). Admittedly, the case is not covered by clause (a) or (aa) of sub-Rule (1) of Rule 27 of the Code. 5. Learned counsel for the petitioners, however, submitted that the Court ought to have allowed production under clause (b) the later part of which says that the production can be allowed “for any other substantial cause”. In my view, “any other substantial cause” cannot cover negligence of a party. Additional evidence cannot be allowed to be produced to fill up the lacuna or loopholes left by a party in the evidence before the trial court. In the present case, the petitioners were in possession of the documents and had even produced their xerox copies but did not produce the originals in the trial court. This clearly shows that they were negligent in not producing the originals at the stage of trial and now want to fill up that lacuna at the appellate stage. The decision of the Full Bench in the case of Saindranath Jagannath Jawanjal v. Pratibha Shikshan Sanstha (supra) does not assist the 5 WP 9861/09 petitioners at all. 6. For these reasons, the writ petition is rejected summarily. (D.G. KARNIK, J.)