1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 568 OF 2009 1] Prashant S/o Shivaji Hake, Age 10 years, (Minor) Occu. Nil, U/g of his natural mother i.e. applicant No. 2. 2] Gangubai W/o Shivaji Hake, Age 31 years, Occu. Agriculture Both R/o Ajansonda (BK), Tq. Chakur, Dist. Latur .. APPELLANTS (Ori. Plaintiffs) VERSUS 1] Venkati S/o Sheshrao Hake, Age 55 years, Occu. Agriculture R/o Ajansonda (BK), Tq. Chakur, Dist. Latur. 2] Vitthal S/o Ramchandra Hake, Age 58 years, Occu. Agriculture, R/o Ajansonda (BK), Tq. Chakur, Dist. Latur. .. RESPONDENTS (Ori. defendants) ... Shri C.R. Deshpande, Advocate for appellants Shri A.S. Deshpande, Advocate for respondent No.1 Miss. R.P. Hardas, Advocate for respondent No. 2 CORAM : S.V. GANGAPURWALA, J. DATE : 23rd SEPTEMBER, 2010. ORAL JUDGMENT: Heard. 2. Admit. 2 With the consent of the parties this second appeal is taken up for final hearing forthwith. 3. The plaintiff has assailed the Judgment and decree passed by the Courts below. Shri C.R. Deshpande, learned Counsel for the appellants points out that appellants had moved an application for adducing additional evidence. The additional evidence which was sought to be adduced was the 7/12 extract of land Gut No. 652 and the certified copy of the map of land Gut No. 652. According to him, the District Court, while deciding the appeal has not considered the said application and pronounced the Judgment. 4. Shri C.R. Deshpande, learned Counsel for the appellants relies on the Judgment of the Apex Court in a case of “ Hakam Singh & Anr. V. State of Haryana & Ors., reported in AIR 2008 SC 2990”. 5. Shri A.S. Deshpande, learned Counsel for the respondent No. 1 submits that the documents sought to be produced are not relevant. 3 Even, the 7/12 extract was exhibited but the same was not considered in the Judgment. According to him, dehors the said documents sought to be produced by way of an additional evidence, the matter can be effectively decided and same has been properly dealt with by the lower Appellate Court. In the light of the above, following substantial question of law arises: “ Whether the Judgment of the lower Appellate court can be sustained as it has failed to decide application for additional evidence moved by the Appellant Under Order 41 Rule 27 of Civil Procedure Code?” 6. When an application of additional evidence is moved by a party, the Court is bound to consider the said application on its own merits. The Court has to decide about the relevancy of the documents and if the application satisfies any of the ingredients as detailed in Rule 27 of Order 41 of Civil Procedure Code, then the court has to allow the said application and give opportunity to the parties to explain about 4 the said documents. The application is not at all considered by the Court below. It seems that at the time of pronouncing the Judgment, the Court has oblivious of the said application and the same was not dealt with. In view of the same, it would be in fitness of things to remand the matter and direct the Lower Appellate Court to decide the said application on its own merits, and thereafter, to decide the future course. The same course was adopted by the Apex Court in the case of Hakam Singh & Anr. V. State of Haryana & Ors.” cited supra. 7. In the result, the Second Appeal is partly allowed. The Judgment and Decree passed by the Lower Appellate Court is quashed and set aside and the matter is remitted back to the Lower Appellate Court. The parties shall appear before the Lower Appellate Court on 11th October, 2010. The Lower Appellate Court, thereafter, shall decide the application Exh. 31 filed by the present appellant under Order 41 Rule 27 of Civil Procedure Code, on its own merits and thereafter, decide the appeal within a period of six months 5 from 11th October 2010. It is made clear that all issues are kept open and the same have not been dealt with, as the matter remanded, as application under Order 41 rule 27 of Civil Procedure Code was not considered. Rule accordingly made absolute on above terms. 8. In view of the disposal of the Second Appeal, Civil Application Nos. 3534 of 2010 and 8156 of 2009 does not survive, and the same are disposed of accordingly. [S.V. GANGAPURWALA,J] SDM* 568.09 SA