IN THE HIGH COURT OF BOMBAY AT GOA MISC.CIVIL APPLICATION NO. 794 OF 2009 IN APPEAL UNDER E.S.I. NO. 8 OF 2008 M/S. MICHAEL AND MICHAEL PIPES PVT. LTD REPRESENTED BY MANAGER ASHOK DATTA NAIK ... Applicant Versus THE REGIONAL DIRECTOR, EMPLOYEES STATE INSURANCE CORPORATION ... Respondent Mr. Vijay Palekar, Advocate for the applicant. Mrs. A. Agni, Advocate for the respondent. Coram:- U. D. SALVI, J. Date:- 5th February, 2010 P.C. This is an application under Order 41 Rule 27 of Code of Civil Procedure, moved by applicant for production of certain circulars of the year 1981-82 of the respondent Corporation at the appellate stage. According to the applicant these circulars play vital role in deciding quantum of payment of contribution to be made by the employer in respect of payment made towards repairs/maintenance of the factory/premises building and the said circulars being circulars issued by the Corporation for the benefit of their officials could not have been to the knowledge of the applicant company and as such existence of these circulars came to the knowledge of the applicant company only when the new lawyer was engaged in the present appeal. 2. The respondent/corporation has resisted this application with the reply dated 16/12/2009. Except denials and branding of the application as misconceived in law nothing much emerges from the reply. On this background the factual contents of the application supported with the affidavit needs to be believed. 3. Learned Advocate Mr. V. Palekar for the applicant pointed out from the text of the application under section 75 of the ESI Act, challenging the recovery of Rs.4, 23, 833/- under section 45(g) of the Act, that all along there has been consistent case of the applicant company that the old records were disposed off. In such circumstances he further submitted that the respondent corporation who knew from the inspection report dated 9/1/1998 about the expenses made on the repairs and maintenance works during the relevant period, ought to have in all fairness considered the said circulars and granted its benefit to the Company. Having not done so there is every reason for the applicant company to question the demand made by the Corporation on the determination of the contribution made under section 45(A) of the ESI, Act, 1948. It is in this context he submitted that the present circulars are relevant and their production at this stage is warranted. 4. Learned Advocate Ms. A. Agni, for the respondent/Corporation submitted that the facts concerning the expenses for repairs and maintenance were not pleaded in the application under section 75 of the Act and as such no evidence can be led in at this stage. She relied upon the Judgment reported in 1995 Supp. 4 SCC 422 Sayed & Company and ors. Versus State of Jammu and Kashmir and ors. to advance her submissions regarding refusal to let in evidence in absence of relevant pleadings. She further submitted that the provisions of Order 41 Rule 27 of C.P.C. ought not to be invoked just because a party at the stage of appeal finds that some material which tilts the decision in its favour needs to be produced. In this connection she relied upon the judgment of this Court reported in AIR 1990 Bom. 98 Indira Bhalchandra Gokhale( Deceased by Lrs) versus Union of India and another. 5. It is correct that expediency should not be a motivation for taking recourse to provisions under Order 41 Rule 27 of C.P.C. It is only the relevant and material evidence, which remained to be produced before the matter reached the appellate stage for want of either the awareness about it or control over it despite exercise of due diligence can be permitted to be produced at the appellate stage. This has been reiterated in the judgment delivered in Indira Bhalchandra Gokhale case Supra. 6. In the instant case the applicant company was unaware of the said circulars which are very much relevant to the matter in issue as they pertain to expenses incurred for repairs and maintenance. It was not expected of the applicant company to have gathered knowledge of such circulars which were meant for officials of the Corporation. If one refers to the meaning of "due diligence" as found in Blacks Law dictionary one can easily notice that there is no measure by any absolute standard by which the prudence, activity or assiduity, which goes into making of diligence can be measured. One can only say that it is the prudence, activity or assiduity exercised by reasonable and prudent man in particular circumstances. In the instant case the applicant company had no record of the past and also did not have access to the circulars issued by the respondent/Corporation. Certainly the respondent Corporation was adversary in terms of the demand made by them. It was therefore not expected of the applicant company that they would have gone asking for such circulars with the respondent/Corporation and the Corporation would have obliged them with such circulars. 7. Considering these facts and circumstances the production of these circulars at this stage needs to be allowed. MCA No. 794/2009 is allowed. Applicant is permitted to produce all the circulars in the present appeal. U. D. SALVI, J. vn