Bombay High Court
Avinash Arunrao Deshmukh vs Rajabhau Manikrao Deshmukh on 1 March, 2016
Bench: V.K. Jadhav
wp7905.15
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7905 OF 2015
Avinash s/o Arunrao Deshmukh
Age 39 years, Occ. Agri. And
Medical practitioner
R/o. Katpur,
Tq. and District Latur ...Petitioner
versus
Rajabhau Manikrao Deshmukh
Age 58 years, Occ. Agriculture
R/o. Katpur
Tq. and District Latur ...Respondent
...
Advocate for Petitioner Mr. Salunke Sudarshan J.
Advocate for Respondents : Mr. V.D. Gunale
.....
CORAM : V. K. JADHAV, J.
DATED : 1st MARCH, 2016
ORAL JUDGMENT:-
1. Rule. Rule returnable forthwith. By consent, heard finally at
admission stage.
2. The petitioner-original plaintiff instituted a suit bearing R.C.S.
No. 580 of 2008 for decree of possession. The said suit was
decreed in terms of its prayers. Being aggrieved by the same, the
respondent-defendant preferred Regular Civil Appeal No. 8 of 2013
before the District Court, Latur. During pendency of said appeal, the
respondent-original defendant filed an application for production of
::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:25:57 :::
wp7905.15
-2-
additional evidence. By way of additional evidence, the respondent
sought for production of copy of judgment passed in Regular Civil
Suit No. 225 of 2009 dated 30.7.2012 and copy of judgment in
Regular Civil Appeal No. 58 of 2013 dated 27.1.2015. The
application was resisted by the present petitioner. The learned
District Judge-4, Latur by impugned order dated 28.4.2015 allowed
the said application Exh.22. Hence, this writ petition.
3.
Learned counsel for the petitioner submits that the application
for production of additional evidence under Order XLI Rule 27 of
Code of Civil Procedure has to be considered alongwith appeal, as is
laid down by the Hon'ble Supreme Court in the case of Union of
India vs. Ibrahim Uddin and Anr, reported in 2013 AIR SCW 2752
(1) and Mallyalam Plantation Ltd. V/s State of Kerala & Anr.
reported in 2011 AIR SCW 264. Learned counsel for the petitioner
also places his reliance on the decision rendered by this Court on
3.2.2014 in writ petition No. 7756 of 2013.
4. Learned counsel for the respondent-original defendant submits
that in R.C.S. No.225 of 2009 the respondent-original defendant was
party and Regular Civil Appeal No. 58 of 2013 arises out of said
R.C.S. No. 225 of 2009. Learned counsel submits that said Regular
Civil Appeal No. 58 of 2013 was disposed of on 27.1.2015 and
::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:25:57 :::
wp7905.15
-3-
therefore, by way of additional evidence, respondent-defendant
sought production of same before the lower appellate court. Learned
counsel submits that the lower appellate court has rightly allowed the
application Exh.22 and there is no substance in the writ petition and
writ petition thus liable to be dismissed.
5. On perusal of impugned order passed below Exh.22, it
appears that the lower appellate court at this premature stage has
almost discussed the merits of appeal, even though the appeal is yet
to be heard on merits and accordingly allowed the application
Exh.22.
6. In view of provisions of Order XLI Rule 27 (1) (b) of C.P.C. if
the appellate court requires any document to be produced or any
witness to be examined to enable it to pronounce the judgment, or for
any other substantial cause it may allow such evidence or document
to be produced, or witness to be examined.
7. In view of this, the lower appellate court may keep application
Exh.22 in abeyance and at the time of final hearing of the appeal, if
the documents sought to be produced by way of application Exh.22
requires so as to enable the appellate court to pronounce the
judgment, then the appellate court may consider the said application.
::: Uploaded on - 03/03/2016 ::: Downloaded on - 31/07/2016 07:25:57 :::
wp7905.15
-4-
In the light of the above discussion, following order is passed:-
ORDER
I. Writ petition is hereby partly allowed.
II. The order dated 28.4.2015 passed by learned District
Judge-4, Latur below Exh.22, in Regular Civil Appeal No.
8 of 2013 is hereby quashed and set aside.
III. The lower appellate court is hereby directed to keep the
application Exh.22 in abeyance and pass appropriate
order on the said application at the time of final hearing of
appeal on merits.
IV. Rule is made absolute in the above terms. Writ petition is
disposed of. In the circumstances there shall be no order
as to costs.
( V. K. JADHAV, J.)
rlj/
wp7905.15
