Bombay High Court
Nimbaji S/O Nago Motghare And ... vs Garudas Chokhinath Motghare And ... on 7 August, 2017
Bench: S.C. Gupte
Judgment 1 wp1315.17.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1315 OF 2017
1. Nimbaji S/o. Nago Motghare,
Aged about 66 years, Occ.: Cultivator,
R/o. Khairi (Punjabrao), Tah. Saoner,
Dist. Nagpur.
2. Arun S/o. Nago Motghare,
Aged about 43 years, Occ.: Cultivator,
R/o. Khairi (Punjabrao), Tah. Saoner,
Dist. Nagpur. .... PETITIONER.
// VERSUS //
1. Shri Gurudas Chokhinath Motghare,
Aged Major, Occ.: Farmer,
R/o. Khairi (Punjabrao), Tah. Saoner,
Dist. Nagpur.
2. Shri Krishna Chokhinath Motghare,
Aged Major, Occ.: Farmer,
R/o. Khairi (Punjabrao), Tah. Saoner,
Dist. Nagpur.
3. Smt. Umabai Wd/o. Chokhinath Motghare,
Aged Major, Occ.: Nil.
R/o. Khairi (Punjabrao), Tah. Saoner,
Dist. Nagpur.
4. Sau. Parvatibai W/o. Vishnu Ramteke,
Aged Major, Occ.: Household,
R/o. Hiwara, Post : Kandri, Tah.
Ramtek, Dist. Nagpur.
5. Sau. Rekhabai W/o. Vijay Bangad,
Aged Major, Occu.: Household,
R/o. Kasturba Nagar, Post : Mankapur,
Tq. & Dist. Nagpur.
.... RESPONDENTS
.
___________________________________________________________________
Shri C.G.Barapatre, Advocate for Petitioners.
Shri Nitin Vyawahare, Advocate for Respondent Nos.1 to 5.
___________________________________________________________________
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Judgment 2 wp1315.17.odt
CORAM : S.C.GUPTE, J.
DATED : AUGUST 07, 2017.
ORAL JUDGMENT :
1. Heard learned counsel for both parties.
2. RULE. Rule made returnable forthwith. Taken up for hearing
by consent of the parties.
3. The writ petition challenges an order passed by the District
Court, Nagpur in Regular Civil Appeal No.353 of 2011. The impugned order
was passed on an application made to the Court for leading of additional
evidence under Order 41 Rule 27 of the Code of Civil Procedure. The
appellants before the District Court were original defendants in a suit filed by
the respondents for possession and mesne-profits on the ground that the suit
property was given on rent to the appellants by the deceased father of the
respondents as he was in dire need of money, and on the appellants' failure
to pay rent the respondents demanded surrender of possession from the
appellants. The appellants' defence to the suit was that the property was
purchased by the father of the appellants in the year 1967. The appellants,
however, could not produce any documentary evidence in proof of their
contention. The respondents' suit, in the premises, was decreed by the trial
Court. When the appellants carried the matter in appeal before the District
Judgment 3 wp1315.17.odt
Court, the appellants found the original sale-deed dated 20 th June, 1967,
purportedly executed by Chokhinath Jangluji Motghare-father of the plaintiff
in favour of the father of the appellants in the presence of two witnesses and
which was duly registered at Sr.No.989 before the Sub-Registrar of
Assurances at Saoner. It is the case of the defendants / appellants before the
Court that defendant No.1 was a minor, whilst defendant No.2 was not born
at the time when the sale-deed was executed in favour of his father. It was
submitted before the District Court by the appellants that the sale-deed could
not be found despite considerable efforts to do so and that it was located
only recently during the course of repairing the house of appellant No.1.
What was sought to be produced accordingly was the original sale-deed on
the basis of which the appellants / defendants would contest the suit.
4. The learned District Judge, in the impugned order, has referred
to the requirements to be satisfied before any application is allowed under
Order 41 Rule 27 of the Code of Civil Procedure. One of the requirements is
to make out a case that the evidence, sought to be produced before the
appellate Court, was not available to the party earlier despite exercise of due
diligence. The learned District Judge has simply rejected the application on
the ground that there was no reason given by the appellants as to why the
original sale-deed could not be filed before the trial Court. There is a clear
case before the District Court that the sale-deed could not be produced
earlier since it was not available and that it was found only in the course of
Judgment 4 wp1315.17.odt
the hearing before the appellate Court, when the house of appellant No.1
was renovated. This does spell out a reason for not producing the evidence
earlier. The District Court has to consider whether or not this reason is
adequate and satisfies the requirements of Order 41 Rule 27. That calls for
remand of the matter.
5. Learned counsel for the respondents relies on a decision of the
Supreme Court in the case of Roop Chand Vs. Gopi Chand, reported in AIR
1989 SC 1416 in support of his case that there must be a satisfactory
explanation of failure to produce the evidence sought to be produced under
Order 41 Rule 27 in the lower Court. That was a case where documents
were sought to be produced for the first time before the Supreme Court.
The documents, the Court noted, could have been obtained and filed by the
appellant before the trial Court itself since the judgment had been rendered
after the documents were found by the applicant. The applicant not only
failed to produce the documents before the trial Court, but also failed to do
so before the appellate Court and even before the High Court in the second
appeal. The Supreme Court accordingly held that there was no satisfactory
explanation for having failed to produce the documents before all the Courts
below including the High Court and, in the premises, rejected the
application. This statement of law has no application to the facts of our
case.
Judgment 5 wp1315.17.odt
6. Rule is accordingly made absolute and petition disposed of by
quashing and setting aside the impugned order of the District Court, Nagpur
and remanding the matter of Exhibit 11 in Regular Civil Appeal No. 353 of
2011 to the District Court. No order as to costs.
JUDGE
RRaut..
