1 W.P.No.9671/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.9671 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.K.C.Sant, advocate for the petitioner Mr.P.S.Shendurnikar, advocate for the Respondent No.1. CORAM : S.V.GANGAPURWALA,J. Date : 16.12.2011. PER COURT : 1. Heard. 2. The petitioner is the original plaintiff. The suit is filed for the relief of declaration and possession of the house property. The parties closed their evidence. The matter was for arguments. At that stage, the defendants filed application seeking permission to lead oral evidence. The said application is allowed by imposing cost of Rs.13,000/- (Rupees thirteen thousand) upon the defendants. The plaintiff has assailed the said order. 3. Mr.Sant, learned counsel for the petitioner strenuously contends that the plaintiff has even commenced his final arguments. The defendants have filed evidence closed purshis and now had 2 W.P.No.9671/11 moved an application for adducing the oral evidence. The provisions of Order 18 Rule 17-A of the C.P.C. are deleted. The learned counsel contends that no due diligence has been shown nor any plausible reason has been given in the application permitting the defendants to adduce evidence at such a belated stage. In such circumstances, the Court could not have permitted the defendants to adduce the evidence. The learned counsel relies on the judgment of the Apex Court in a case of "Salem Advocate Bar Association,Tamil Nadu Vs. Union of India" reported in AIR 2005 Supreme Court 3353 and another judgment of the Apex Court in the case of "Vadiraj Naggappa Vernekar (deceased by L.Rs. Vs. Sharad Chand Prabhakar Gogate" reported in AIR 2009 Supreme Court 1604. 4. Mr.Shendurnikar, learned counsel for the Respondent No.1 submits that between the application given for adducing evidence and the evidence closed purshis, there was a gap of only 20 days. The defendants along with the application has already tendered his examination-in-chief. So also has given an undertaking to the Court that no further evidence shall be led, no additional documents shall be filed and no adjournment shall be sought. The Court has also imposed cost of Rs.13,000/- (Rupees thirteen thousand) on the defendants. The Court has rightly exercised the discretion. 5. The nature of dispute pertains to an immovable property. 3 W.P.No.9671/11 There are contentious issues in the suit. It appears that the defendants initially did not lead any evidence. There is no oral evidence on behalf of the defendants. At the stage of arguments, the said application was moved. It is not a case of additional evidence being led but the defendants sought permission to adduce oral evidence. The defendants to show bonafides has also given an undertaking to the Court that no other evidence shall be led i.e. no other witness is to be examined, no additional documents shall be filed and no adjournment would be taken. When there are contentious issues in the suit and the suit pertains to the rights of the parties in an immovable property, it would be in fitness of things to get the matter decided on merits, after giving opportunity to the parties. For the delay i.e. caused the defendants are also mulct with heavy costs. There is no bar for allowing the additional evidence as has been held in the case of "Salem Advocate Bar Association, Tamil Nadu Vs.Union of India" referred supra. Even this is not a case of additional evidence. The discretion exercised by the Court can not be said to be perverse nor the order can be said to be excess of jurisdiction. 6. In light of the above, no case for interference is made out in the Writ Jurisdiction of this Court under Article 227 of the Constitution of India. As such the Writ Petition is dismissed. 4 W.P.No.9671/11 However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.16.12.2011. asp/office/wp9679.11