1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD LETTERS PATENT APPEAL NO. 57 OF 2010 IN WRIT PETITION NO. 1112 OF 2010 1. Sudhir S/o Rajabhau Gondhali and another .. Appellants Versus Kanhuji S/o Fakirchand Misal .. Respondent Shri Sunil Deshmukh, Advocate for the Appellants. CORAM : A. P. DESHPANDE, AND N. D. DESHPANDE, JJ. CLOSED FOR ORDERS ON : 05.03.2010. ORDER PRONOUNCED ON : 12.03.2010. COURT'S ORDER [Per N. D. DESHPANDE, J. ] : 01. Present Letters Patent Appeal questions the legality of an order dated 16.02.2010 passed by learned Single Judge of this 2 Court dismissing Writ Petition No. 1112/2010 and also the order dated 07.01.2010 passed by learned District Judge - 6, Aurangabad, below Exhibit 05 in Regular Civil Appeal No. 343/2006, rejecting the application for production of additional evidence/documents on record before the First Appellate Court, under Order XLI Rule 27 of the Civil Procedure Code. 02. Heard Shri Sunil Deshmukh, learned counsel for the appellants/petitioners. 03. The writ petition came to be filed for admitting certain documents namely two chits dated 09.01.1995 and 03.05.1995 and two affidavits of Kanhu and Vimalbai dated 27.01.1975 in R.C.A. No. 343/2006 preferred by the appellants/petitioners before the First Appellate Court i. e. District Judge - 6 Aurangabad, who was pleased to reject the said application Exhibit 05 dated 31.02.2008 filed under Order XLI Rule 27 of Civil Procedure Code by its order dated 07.01.2010, hence it is impugned in the present appeal. 04. Perused the impugned orders. The question therefore, arises for consideration is, whether the appellants/petitioners 3 would be entitled to produce additional evidence whether oral or documentary before the First Appellate Court and its rejection is legal and proper ? 05. The relevant provisions of Civil Procedure Code and few facts needs to be mentioned. Order XLI Rule 27 is reproduced as below : Order XLI 27. Production of additional evidence in 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 4 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. 06. It is undisputed that the parties are letigating from 1993 in the Court of Civil Judge Junior Division, Paithan in respect of suit property gat No. 70 area 06 Acres 06 Guntha situated at village Solanpur, Tq. Paithan, Dist. Aurangabad. It is the suit property belonging to the respondent and he filed Regular Civil Suit No. 39/1993 for possession of the suit property from the appellants. A separate civil suit No. 113/1997 in the nature of counter suit came to be filed by the appellants against the respondent for specific performance of agreement of sale dated 30.03.1975 in respect of the same suit property against the respondent. The appellants claimed to be in possession of the suit property from the date of agreement, since 1975 in part performance of agreement on payment of Rs. 8,500/- out of total consideration of Rs. 9000/- and agreed to pay Rs. 500/-, at the time of execution of sale deed. Both the suits filed by the parties were tried together. By common judgment and order dated 26.10.1999, the learned Civil Judge Junior Division, Paithan decided both the suits and decreed suit for specific performance 5 of contract in favour of the appellants and the respondent's suit R.C.S. No. 39/1993 for possession came to be dismissed. Consequently the respondent preferred two separate appeals against the impugned judgment and decree dated 26.10.1999 passed by the learned Civil Judge Junior Division, Paithan. Those two appeals of the respondent namely Regular Civil Appeal No. 82/2001 and 83/2001 were allowed by the First Adhoc Additional District Judge, Aurangabad by common judgment and order dated 12.12.2002 and both the suits were remanded to the Trial Court with a direction to frame an issue on the point of limitation in R.C.S. No. 113/1997 of the appellants and parties were allowed to lead oral and documentary evidence. It was also observed that respondent's suit R.C.S. No. 39/1993 for possession would depend on final decision in R.C.S. No. 113/1997 of appellants for specific performance and as such, both the suits were remanded for fresh decision. 07. After remand of the proceedings as above, the learned Civil Judge Junior Division, Paithan by common judgment and order dated 15.11.2007 dismissed the appellants suit R.C.S. No. 113/1997 for specific performance as barred by limitation and further decreed the respondent's suit R.C.S. No. 39/1993 for 6 recovery of possession from the appellants with a direction for inquiry into the mesne profits. Appellants therefore, felt aggrieved and impugned aforesaid judgment and decree dated 15.11.2007 and preferred two separate appeals registered as R.C.A. No. 342/2006 and 343/2006 arising out of these two suits respectively. 08. When these two first appeals came up for final hearing, appellants filed an application Exhibit 5 in R.C.A. No. 343/2006 on 11.12.2006 for permission to produce certain documents to be read in evidence under Order XLI Rule 27 of the Civil Procedure Code on record for the first time in the year 2006. As mentioned above, it was rejected by the First Appellate Court by an order dated 07.01.2010, so also it came to be rejected by the learned Single Judge of this Court by judgment and order dated 16.02.2010 in writ petition. 09. We have heard the learned counsel for the appellants/petitioners at length. Perused the impugned orders and the above mentioned four documents which are private documents. The respondent vehemently opposed the application Exhibit 5 for production of additional evidence/documents. There 7 is elaborate discussion in the impugned orders on the issue of production of additional evidence referring to these documents to be filed on record before the First Appellate Court. The appellants' story was not believed and accepted for its delayed production. Those documents which appellants want to file on record appears to be of 1975. The litigation started in the year 1993 and the appellants had an opportunity to lead all evidence before the Trial Court, when they were prosecuting their suit for specific performance, which they separately filed in the year 1997. But they were not deligent enough even at the subsequent stage, when both the suits were remanded. The appellants alleged that the documents were discovered by them in November 2006, when they opened Bhagwat book for reading. It was not believed. Thus, it is seen that the rejection of the documents is not only because of delayed production, but considering the merits of application which came to be rejected. Thus, the rejection is not merely on the ground of pendency of the proceedings for a period over 17 years or so, as argued by the learned counsel for the appellant before us. 10. Thus, it is seen that, the application for production was considered on its merits and came to be rejected being devoid of 8 substance. There are concurrent findings recorded on this issue, which call for no interference. In the result letters patent appeal stands dismissed summarily with no order as to cost. [ N. D. DESHPANDE, J.] [A. P. DESHPANDE, J.] bsb/Mar.10