1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 436 OF 2010 Amin Alikhan Pathan .. PETITIONER VERSUS Mainabai w/o Bankat Kale .. RESPONDENT Mr. S.G. Chapalgaonkar, Advocate for the petitioner. Mr. K.K. Kulkarni, Advocate for the respondent. ===== CORAM : R. M. BORDE, J. DATE : 7th APRIL, 2010 PER COURT : 1 Order passed at the interlocutory stage of the proceeding in pending appeal before the first appellate court dt. 7-12-2009 is subject matter of challenge in this petition. 2 Petitioner is the original defendant against whom a suit bearing Regular Civil Suit no. 359/2000 was presented by the plaintiff seeking specific performance of agreement. The defence of the defendant is that the transaction in question is not a transaction in respect of transfer of property but is a transaction relating to advancement of money and the document in 2 question is executed by way of security for the loan obtained. Trial court, however, after considering the evidence placed on record was pleased to grant decree in favour of the plaintiff on 5-12-2006. The judgment and decree passed by the trial court is subjected to appeal in Regular Civil Appeal no. 10/2007 by the petitioner / original defendant. In pending appeal, application came to be presented by the petitioner requesting the court to refer the letter produced by the defendant in the lower court for securing opinion of the handwriting expert. The contention of the defendant / petitioner is that the letters in question are in the handwriting of the defendant’s witness no. 2 Bankat Kale husband of the plaintiff. Such an application was moved during the pendency of the suit, however, the same was turned down by the trial court. Considering this aspect of the matter, the first appellate court also rejected the application tendered by the petitioner. Another prayer was also made in the application before the first appellate court urging the court to grant leave to the petitioner to produce additional evidence on record. The request made by the petitioner / original defendant for production of additional evidence is also turned down by the first appellate court. 3 I have perused the application as well as the impugned order passed 3 by the first appellate court. Without going into the controversy involved in the matter, it would be appropriate for the first appellate court to re-consider the prayers made by the petitioner in the application at the stage of hearing of the main appeal. The first appellate court would be better equipped to deal with the application on consideration of the evidence placed on record by the parties. At appropriate stage i.e. at the time of hearing of the appeal, if the first appellate court deems it appropriate to refer the documents in question for securing opinion of the handwriting expert, the first appellate court may pass appropriate order in that regard. The decision rendered by the court in application below exh. 24 on 7-12-2009 shall not be an impediment in reconsidering the prayer. In this view of the matter, no interference is called for in the petition. Petition therefore stands dismissed summarily. 4 In view of dismissal of petition, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/wp436.10.odt