1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6570 OF 2009 Rural Eduction Society, Bhadli (Bk.), Tq. & Dist-Jalgaon, Through its Chairman Shri Vishnu s/o Dinkar Khadse, R/o-Bhadli (Bk.), Tq. & Dist- Jalgaon. ...PETITIONER. VERSUS 1) Shri Sanjay s/o Punnilal Thakur, R/o- At Post- Shirsoli, Tq. & Dist-Jalgaon, 2) Mahatma Gandhi Vidyalaya, At Post Bhadli (Bk.), Tq. & Dist-Jalgaon, Through its Head Master, Shri Bhaskar Deochand Mahale, R/o-Bhadli (Bk.), Tq. & Dist-Jalgaon, 3) The Education Officer (Secondary), Zilla Parishad, Jalgaon. ...RESPONDENTS. ... Mr.A.S. Shelke Advocate for Petitioner. Mr.M.S. Deshmukh Advocate for Respondent No.1. Mr.D.R. Kale A.G.P. for Respondent No.3. ... 2 CORAM: K.K. TATED, J. DATE : 5TH OCTOBER, 2009. PER COURT : 1. Heard learned counsel for the Petitioner, learned counsel for Respondent No.1 and learned A.G.P. for Respondent No.3. 2. By this Petition under Articles 226 and 227 of the Constitution of India, the Petitioner - original Respondent challenges the order dated 7th September, 2009 rejecting Petitioner's application under Order 41 Rule 27 of the Code of Civil Procedure for production of additional evidence. It is the case of the Petitioner that one Smt. Purnima Patil filed complaint against Respondent No.1 and on the basis of said complaint, they started enquiry against Respondent No.1 and initially suspended him and after holding enquiry dismissed the Respondent No.1 from services. Against the said order of dismissal, the Respondent No.1 preferred appeal No.11 of 2008 before the School Tribunal, Nashik. In the said 3 Appeal the Petitioner filed application under Order Order 41 Rule 27 of the Code of Civil Procedure praying that the Petitioner institute wants to examine Smt. Purnima Patil. It is the case of the Petitioner that though the enquiry committee issued letters dated 14/2/2008 and 21/2/2008, Smt. Purnima Patil to remain present before the enquiry committee for giving her evidence, she remained absent and therefore her evidence could not be recorded by the enquiry committee. Learned counsel for the Petitioner states that her evidence is important in the present case to justify their action of suspending/removing the Petitioner from services and therefore they preferred application dated 2nd September, 2009 before the School Tribunal under Order 41 Rule 27 of the Code of Civil Procedure. 3. Learned counsel for Respondent No.1 submitted that Respondent No.1 filed his reply dated 2nd September, 2009 opposing the Petitioner's application. In his reply Respondent No.1 specifically stated that previously also the 4 Petitioner filed application dated 29th August, 2009 for similar request and same was withdrawn by them unconditionally. Therefore the Petitioners have no right to file fresh application for the same cause of action. Learned counsel for Respondent No.1 further submitted that evidence which was not before the enquiry committee, cannot be brought on record in Appeal. On the basis of these submissions, learned counsel for Respondent No.1 opposed the present Writ Petition. 4. It is admitted fact that though the enquiry committee issued letters dated 14/2/2008 and 21/2/2008 to Smt. Purnima Patil to remain present before the enquiry committee for recording her evidence, she remained absent and therefore her evidence could not be recorded by the enquiry committee. Learned counsel for the Petitioner failed to make out any case to show what steps they had taken before the enquiry committee to procure the presence of Smt. Purnima Patil for her evidence. Learned counsel for Respondent No.1 further pointed 5 out that arguments of Respondent No.1 are already over before filing the impugned application by the Petitioner dated 2nd September, 2009 and the matter is posted for Petitioner's arguments. Under Order 41 Rule 27 of the Code of Civil Procedure the party has to make out a case for bringing additional evidence on record. Not only that they have to point out the steps taken by them to procure the said evidence. Learned counsel for Respondent No.1 in support of his contention, relied on the Judgment of the Apex Court in the matter of Adil Jamshed Frenchman (D) by L.Rs., vs. Sardar Dastur School Trust and others, reported in A.I.R. 2005 Supreme Court, Page 996. Head Note of the Judgment reads as under: "Civil P.C. (5 of 1908), O. 41, R. 27 - Appeal - Production of additional evidence - Permissibility - Decree for eviction on ground of bona fide need - Appeal against tenant seeking permission to produce documents relating to sale of premises by landlord to company, modified plan for construction and 6 public brochure issued by landlord seeking donation and funds for construction, indicating lack of funds for construction with the landlord - Documents sought to be produced by tenants are material and if substantiated, would have a material effect on plea of bona fide need - Order of High Court setting aside order of Appellate Court allowing production, liable to be quashed." 5. It is to be noted that additional evidence in appeal may be admitted on either of the grounds namely a) improper refusal of evidence by trial court b) the appellate Court requiring the document or evidence for proper adjudication or for ends of justice which includes any other substantial cause and for the party's not getting hold of the evidence despite due diligence. Not only that on application for adducing additional evidence filed during midst of hearing of appeal for the first time in the name of substantial cause cannot be entertained especially when similar application has been filed 7 by party earlier. In the present case the Petitioners have not brought on record any evidence to show that they had taken any steps to procure the presence of Smt. Purnima Patil before the enquiry committee to record her evidence. Petitioners unconditionally withdrawn their earlier application for same cause of action. Considering these facts, I do not find any substance in the present Writ Petition and the same is dismissed summarily. [K.K. TATED, J.] asb/OCT09/wp6570.09