Mr. Zafar Gulfam Irani And Anr vs Jahir Attakhan Pathan
2021 Latest Caselaw 2832 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                     WRIT PETITION (ST) NO. 4666 OF 2020

 Zafar Gulfam Irani & Anr.                                ..Petitioners
       Vs.
 Jahir Attakhan Pathan                                    ...Respondent

                                     ----

 Mr. Waseem H. Khan, for the Petitioners.
 Mr. Omar K. Shaikh, for the Respondent.

                                     ----

                                   CORAM : C.V. BHADANG, J.

DATE : 11th FEBRUARY 2021

P.C.

. Heard learned counsel for the parties.

2. The challenge in this petition is to the order dated 9/1/2020

below Exh.21 passed by the learned Ad-Hoc District Judge at Pune

in Civil Appeal No.487/2014. By the impugned order, the

application Exh.21 filed by the petitioners / appellants, purportedly

under Order XLI Rule 27 of CPC for production of a document

namely copy of the notice dated 18/12/2005 issued by the

respondent to the petitioner No.2, has been dismissed.

      Mamta Kale                                                       page 1 of 4




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3. The brief facts are that the respondent had filed R.C.S.

No.158/2009 against the petitioners interalia seeking eviction etc.

It appears that the petitioners were proceeded exparte in the said

suit and the suit came to be decreed exparte by judgment and

decree dated 1/3/2014.

4. The petitioners have challenged the said decree in an appeal

being Civil Appeal No.487/2014 which is pending before the

learned District Judge at Pune. It further appears that the

petitioners have also filed an application under Order IX Rule 13 of

CPC for setting aside the exparte decree on the ground that the

summons were never served on the petitioners, which application is

pending before the Trial Court.

5. The petitioners as noticed earlier, sought production of the

copy of the notice dated 18/12/2005 in all probability to show the

address on which the said notice was sent to the petitioners. The

learned counsel for the petitioners submitted that although the

respondent was aware of the address, the service of the summons in

the suit was sought by way of publication which was improper. It is

in these circumstances that the production of the copy of the notice

was sought in the appeal which the Appellate Court has refused on

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the ground that the said document was not produced before the

Trial Court.

6. The learned counsel for the petitioners submitted that there

was no occasion for the petitioners to produce the document before

the Trial Court in as much as the suit had proceeded exparte. It is

also pointed out that the respondent had given no objection for

production of the said document and thus it ought to have been

allowed.

7. The learned counsel for the respondent submitted that there

was no evidence led by the petitioners before the Trial Court and

therefore there is no question of any 'additional evidence', being

permitted at the appellate stage. Secondly, it is submitted that the

concession given, in favour of the production of the document was

subject to the proof of the said document as per the Evidence Act.

8. I have considered the circumstances and the submissions

made. As noticed earlier, the petitioners have also availed of the

remedy under Order IX Rule 13 of the CPC and that application for

setting aside the said decree is pending before the Trial Court. The

learned counsel for the petitioners, in all fairness, did not dispute

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that ideally the copy of the notice dated 18/12/2005 would be

relevant to show the address of the petitioner No.2 in the said

application under Order IX Rule 13 of the CPC. He therefore

submitted that the petitioners would produce the said document in

the said proceedings.

9. In that view of the matter, the petition is disposed of with

liberty to the petitioners to produce the said document in the

application under Order IX Rule 13 of the CPC which shall evidently

be subject to proof, in accordance with law. It is made clear that this

Court has not examined the issue whether the remedy under Order

IX Rule 13 of the CPC and the appeal can be availed of together.

The rival contentions in that regard are left open. The petition is

disposed of in the aforesaid terms, with no order as to costs.

C.V. BHADANG, J.

      Mamta Kale                                                   page 4 of 4