-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.1816 OF 2008 Shri Dharmraj Eknath Sutar : Petitioner V/s. Mrs.Sonabai Eknath Ranpise & Ors. : Respondents .... Mr.Rajesh More for the petitioner. .... CORAM : B.H.MARLAPALLE,J. DATE : APRIL 02, 2008. P.C. 1. Heard Mr.More, the learned counsel for the petitioner. 2. Regular Civil Suit no.229 of 2001 filed by the present respondents-landlords has been decreed against the present petitioner-defendant as per the judgement and order dated 9.12.2005 rendered by the learned Judge of the Small Causes Court, Pune, and the petitioner has challenged the said decree in Civil Appeal No.100 of 2006. In the said appeal, an application under Order XLI Rule 27 of the Code of Civil Procedure was submitted seeking leave to bring on record some additional documents by way of evidence and these documents were: (a) licence under the Bombay Shops and Establishments Act; (b) loan sanction letter issued -: 2 :- by the Vishweshwar Sahakari Bank Ltd., Pune; and (c) stock book of kerosene for the period from August 1999 to June 2001. By the impugned order dated 21.9.2007, the application filed under exh.33 has been rejected. 3. Copies of the said documents sought to be produced before the lower appellate Court are placed before me. It is noted that the licence under the Shops and Establishments Act was issued on 25.10.1985 in the name of Vijay Provision Stores run by Smt.Indumati Dharmaraj Sutar and the licence was renewed for the years 2002-05. The licence is not in the name of the present petitioner. In addition, the loan sanctioned by the Vishweshwar Sahakari Bank Ltd., Pune, is also in the name of Smt.Indumati Sutar. It is stated that Smt.Indumati Sutar is the wife of the present petitioner. I have also perused the kerosene stock book. The eviction decree was passed on the ground of arrears of rent, unwillingness to pay the rent, and non-user of the premises for a period of six months preceding the date of filing of the suit. The suit was filed on or about 22.4.2001 and the licence sought to be produced on record, which may be termed as a public document, does not indicate that it was renewed and valid at the time when the suit was presented. The other documents are not public documents and they do not indicate, in any case, that they are relevant on the issue -: 3 :- as to whether the premises were not under use for a period of six months preceding the date of the suit. 4. In addition, the lower appellate Court found no satisfactory reason for the defendant’s failure to place these documents before the trial Court. Rule 27 of Order XLI is in three parts. In the first part, there must be a refusal by the Court passing the decree to admit documents on record. In the second place, the party seeking to produce additional evidence must establish 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. The petitioner could not satisfy that after due diligence, the documents could not be produced before the trial Court and the said finding of the lower appellate Court cannot be faulted with. 5. Even otherwise, on a perusal of the documents and as I have noted above, they do not relate to the period of non-user and more particularly, the public document, viz., the licence. 6. Hence, the Petition is rejected. -: 4 :- B.H. MARLAPALLE, J.