Bombay High Court
Daulat Namdeo Dhangar vs Prakash Bajirao Tayade Through Lrs ... on 10 November, 2025
2025:BHC-AUG:30841
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14755 OF 2021
Daulat Namdeo Dhangar .. Petitioner
Versus
Prakash Bajirao Tayade (deceased)
Through L.Rs. Latabai Prakash Tayade
And Others .. Respondents
Mr. Shaikh Mohammad Naseer A., Advocate for the Petitioner.
Mr. Ajit M. Gholap, Advocate for Respondent Nos. 1 to 4.
CORAM : KISHORE C. SANT, J.
DATE : 10th NOVEMBER, 2025.
PER COURT :-
1. Heard learned advocates for the parties.
2. By way of present petition, the petitioner has challenged an
order dated 05.09.2019 passed by the learned Appellate Judge on
an application below Exh. 19 in R.C.A. No. 58/2015. The learned
Judge by way of impugned order has rejected the application of
the petitioner - original defendant filed under Order 41 Rule 27 of
the Code of Civil Procedure. It is the case of the petitioner that,
though the documents were given to the earlier advocate who
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filed an appeal, those were not brought on record. He did not
produce the same in the learned Trial Court during the course of
trial, nor the advocate filed any such application. Therefore, the
application was filed at belated stage. The learned Trial Judge
held that, in the Trial Court the evidence of the petitioner was
closed by pursis Exh. 79. After the decision of the suit, appeal
came to be filed in the year 2014. However, for the first time on
12.07.2019 the application is moved by the petitioner and rejected
the application.
3. The learned advocate Mr. Shaikh for the petitioner
vehemently argued that, the learned Appellate Judge has
committed a mistake by not allowing the application. The
application ought to have been allowed. In the alternative, he
submits that, it is settled position of law that such application
should be decided at the stage of final hearing. In the present
case, the Court ought to have waited till final hearing, however,
the application is taken up for hearing immediately and is
rejected.
4. The learned advocate Mr. Gholap for respondent Nos. 1 to 4
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vehemently opposed the petition. He submits that, no case is
made out for accepting the application at belated stage. The
appeal was ready for hearing and it is at that stage the petitioner
deliberately filed an application just to prolong the hearing of the
appeal. He points out from the learned Trial Court's judgment
that, since beginning it is the case of the petitioner - defendant
that there was agreement to sale dated 28.12.2006 executed
between the plaintiff and defendant, however, the same is not
produced in the learned Trial Court and even in the appeal when
the appeal was filed. It was necessary for the petitioner to file
such application alongwith appeal itself. He submits that, the
application is thus filed only to prolong the hearing. The appeal
and the petition deserves to be dismissed with costs.
5. There is no dispute about the said proposition that such
application need to be decided at the stage of hearing of the
appeal. During the course of argument, learned advocate for the
petitioner has produced on record an order dated 22.07.2019
passed in Writ Petition No. 11226/2017 in the case of Bilquis
Khanum w/o Iqbal Khan and another Vs. Vitthal s/o Kerba
Bhalerao (died), through LR's. This Court in the said case relying
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upon the judgment in the case of Malyalam Plantations Limited
Vs. State of Kerala and another, AIR 2011 SC 559 directed the
Appellate Court to decide the application alongwith final hearing
of the appeal. In the present case, certainly the course was open
for the learned Appellate Court to decide the application
alongwith appeal. From the conduct of the parties it is seen that
the parties, however, are not ready to wait till final argument of
the appeal and they insist the Court for passing orders
immediately which makes the Court to pass such orders. It is also
clear that, such application is to be filed in the cases where the
learned Trial Court refuses to admit it. Secondly, the evidence was
not available to the party despite exercise of due diligence and
thirdly, the learned Appellate Court requires the additional
evidence so as to enable it to pronounce the judgment or for any
other substantial cause of a like nature.
6. As rightly pointed out by learned advocate Mr. Gholap that
since beginning it is the case of the petitioner - defendant that,
defendant is in possession by virtue of agreement to sale dated
28.12.2006, the document which is now sought to be produced on
record. A case is thus not clearly covered by clause (i) that the
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learned Trial Court has refused to admit the evidence. It also rules
out the second ground that the evidence was not available to the
party despite of exercise of due diligence. So far as third clause is
concerned, it is not pointed out as to how the learned Appellate
Court would come to a different conclusion even if the document
is taken on record. In the present case, the learned Trial Court has
already dealt with the aspect of the agreement to sale dated
28.12.2006. For all these reasons this Court finds that, no purpose
would be served even by directing the learned Appellate Court to
decide this application afresh.
7. This Court does not find any perversity or illegality in the
impugned order. No case is made out to interfere with the writ
petition. Therefore, the writ petition stands dismissed. No order
as to costs.
8. Since the appeal is pending since 2014, it is expected of the
learned Appellate Court to decide it as early as possible and
preferably within three (03) months from today.
( KISHORE C. SANT, J. )
P.S.B.
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