Bombay High Court
Jatashankar Bishanlal Vyas vs Gaurishankar Bishanlal Vyas, ... on 10 April, 2017
Bench: M.S. Sanklecha
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10355 OF 2014
Jatashankar s/o Bishanlal Vyas,
Age-65 years, Occu-Business,
R/o Upon Bhakti Music Centre,
Shivaji Road, Parbhani,
Tq. and Dist.Parbhani -- PETITIONER
VERSUS
1. Gaurishankar r/o Bishanlal Vyas,
died, through his LR's
1-1] Kamalbai w/o Gaurishankar Vyas,
Age-59 years, Occu-Household,
R/o Parbhani, Through Power of
Attorney R-1/2
1-2] Mukteshwar s/o Gaurishankar Vyas,
Age-39 years, Occu-Service,
R/o Plot No.33, Manik Nagar,
Garkheda Parisar,
Aurangabad
1-3] Dattaprasad s/o Gaurishankar Vyas,
Age-34 years, Occu-Service,
R/o Parbhani Through Power of
Attorney R-1/2
1-4] Nileshwar s/o Gaurishankar Vyas,
Age-29 years, Occu-Education,
R/o Parbhani Through Power of
Attorney R-1/2,
1-5] Bharti d/o Gopal Tiwari,
Age-36 years, Occu-Household,
R/o Ansing, Through Power of
Attorney R-1/2,
1-6] Puja w/o Sanjaykumar Panchariya,
khs/APR.2017/10355
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2
Age-38 years, Occu-Household,
R/o Satana Naka Malegaon,
Dist : Nasik, Through Power of
Attorney R-1/2,
2. Tarkeshwar s/o Bishanlal Vyas,
Age-52 years, Occu-Business,
R/o Shivaji Chowk, Parbhani,
Dist.Parbhani,
3. Budheshwar s/o Bishanlal Vyas,
Age-49 years, Occu-Business,
R/o Shivaji Chowk, Parbhani,
Dist.Parbhani - RESPONDENTS
Mr.G.K.Thigale, learned counsel for the petitioner.
Respondent Nos.1(1) to 1(6) served.
Mr.Milind M.Patil (Beedkar), learned counsel for respondent Nos. 2
and 3.
( CORAM : M.S.Sanklecha, J.)
DATE : 10/04/2017
ORAL JUDGMENT :
1. Rule. Respondents waive service. Rule made returnable
forthwith. At the request of the parties, petition is taken up for final
disposal.
2. This petition under Article 227 of the Constitution of India
challenges the order dated 02/08/2014 passed by the Principal
District Judge, Parbhani. By the impugned order, the petitioner's
application for leading additional evidence under Order 41 Rule 27 of
khs/APR.2017/10355
the Civil Procedure Code, 1908 (CPC) was rejected by the Appeal
Court.
3. The grievance of the petitioner is that the impugned order
dated 02/08/2014 rejecting the application for production of
additional evidence was passed before having taken up the appeal
itself for consideration on merits. It is submitted this is contrary to
the decision of this Court, in Shivgopal s/o Balkishan Pathak Vs.
Sant Kashivishwanath Baba (dead) and others (Writ Petition
No.3404/2009) dated 05/09/2011 which has while following the
decisions of the Apex Court in State of Rajasthan Vs. T.N.Sahani and
others [(2001) 10 SCC 619] and in Malyalam Plantations Ltd.,Vs.State
of Kerala and another [2001 AIR SCW 264] held that the application
for additional evidence has to be considered by the Appellate Court at
the time of hearing of the appeal on its merits so as to find out
whether the documents/evidence sought to be adduced have any
relevance/bearing in the issues involved.
4. It is an undisputed position before me that on the date when
the impugned order was passed, the appeal was not ripe for final
hearing. Therefore, in view of the decision of this Court in Shivgopal
Pathak (supra), the impugned order being contrary to the law laid
khs/APR.2017/10355
down by this Court, is set aside. The petitioner's application for
leading additional evidence would be considered at the time when the
Appellate Court takes up the appeal for final disposal on merits. It is
made clear that the merits of the petitioner's application has not
been considered by this Court and the Appellate Court would
consider the same on its own merits without being influenced by this
order in any manner.
5. Petition is allowed in the above terms. No order as to costs.
( M.S.Sanklecha, J.)
khs/APR.2017/10355
