High Court
Legal Reasoning
1922-wp-10510-2022IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10510 OF 20221.Ahmedpasha s/o Meerasab Tamboli,Age: 69 years, Occu: Business.2.Moinpasha s/o Meerasab Tamboli,Age: 59 years, Occu: Business,Both R/o Azad Chowk, Latur,Tq. & Dist. Latur…..PETITIONERS(Orig. Plaintiffs)VERSUSSmt. Parwatibai w/o Jagannath Verma,Age: 81 years, Occu: Household,R/o. C.T.S. No.6667, Azad Chowk,Latur, Tq. & Dist. Latur.…..RESPONDENT(Orig. Defendant)______________________________________________________Mr. M. D. Shinde, Advocate for the PetitionersMs. Anjali Dube (Bajpai), Advocate for Respondent no.1______________________________________________________CORAM:ROHIT W. JOSHI, J. DATED:23RD JULY, 2025ORAL JUDGMENT :-.Rule. Rule made returnable forthwith.2.Heard finally with consent of parties.3.The petitioners in the present petition are the originalplaintiffs and respondents in Regular Civil Appeal No.78 of 2922-wp-10510-20222014, which arises out of judgment and decree dated21.03.2014, passed by the learned 5th Joint Civil Judge, JuniorDivision, Latur in Regular Civil Suit No.12 of 2009.4.The learned Trial Court has passed a decree forperpetual injunction restraining the defendant (respondent inpresent petition) from demolishing and damaging a wallrunning in north-south direction between two lands bearingCTS No.6667 and 6668. There is a boundary dispute betweenthe parties and both the parties claim ownership on the wall .Both the parties claim that the wall is situated within theirland. As stated above, the original defendant has filed appealchallenging the decree passed by the learned Trial Court. Inthis appeal, the defendant/appellant filed two applications atExhibit 24 and 26. Exhibit 24 is filed for permission toproduce documents pertaining to measurement report dated03.07.2012 on record. This measurement dated 03.07.2012was done with respect to property owned by the plaintiffpursuant to application made by the plaintiff. The applicationat Exhibit 26 is an application seeking permission to leadadditional evidence, wherein it is prayed that cadastral 3922-wp-10510-2022Surveyor from the office of TILR, Latur be summoned so as toexamine him as a witness. Initially, vide order dated18.09.2021, passed below Exhibit 26, the learned AppellateCourt called upon the plaintiff either to admit or to deny thedocuments produced on record alongwith application atExhibit 24. The learned Appellate Court had alreadypermitted production of documents vide order dated08.02.2021. Since, the plaintiff refrained from eitheradmitting or denying the document, application for Exhibit 26was taken up for hearing.5.The learned Appellate Court has allowed the applicationvide order dated 03.03.2022. It is observed that despiteopportunity being given, the appellant had chosen to remainsilent with respect to the documents produced on record andhe did not admit or deny the said documents. The learnedAppellate Court has further observed that the documentswhich were sought to be produced on record, were pertainingto a measurement of the property owned by the plaintiff on anapplication made by the plaintiff himself. This measurementrecord was not produced on record by the plaintiff. In that
Legal Reasoning
4922-wp-10510-2022view of the matter, the learned Appellate Court has allowedthe application.6.Mr. Manoj Shinde, the learned Advocate for thepetitioner contends that it is well settled that applicationunder order 41, Rule 27 is required to be heard and decidedalongwith appeal. The learned Advocate contends that theCourt cannot arrive at satisfaction with respect to relevance ofthe evidence unless the Court hears the appeals on merits.The learned Advocate further contends that the measurementcase of which documents are produced on record only pertainsto correction of clerical error in the record and is, therefore,not relevant for adjudication of the controversy which formssubject matter of the appeal. The learned Advocate for thepetitioner has placed reliance on judgments of the Hon’bleSupreme Court in the matters of Malyalam PlantationsLimited Vs. State of Kerala and Another, reported in (2010)13 SCC 487 and A. Andisamy Chetitiar Vs. A. SubburajChettiar, reported in (2015) 17 SCC 713. 7.As against this, the learned Advocate Ms. Anjali Dubesupports the impugned order. Her contention is that since 5922-wp-10510-2022documents pertaining to measurement of suit property havebeen suppressed by the plaintiff, it was necessary to allow theapplication for production of additional evidence even at theappellate stage. She contends that it is bounden duty of everylitigant to come to the Court with clean hands by making fulland complete disclosure of all the evidence that is in custodyrelating to controversy involved in the matter. The learnedAdvocate further contends that since, the measurement iscarried out on an application made by the plaintiff, theplaintiff cannot raise any grievance about any prejudice beingcaused to him. 8.As regards the submission of learned Counsel for thepetitioner that the application should have been taken up forhearing at the stage of final hearing of the appeal, the learnedAdvocate has placed reliance on judgment of the Hon’bleSupreme Court in the matter of K. R. Mohan Reddy Vs. M/s.Net Work Inc. Rep. Tr. M.D., reported in 2007 AIR SCW 7597and a Division Bench judgment of this Court in the matter ofHasanate Taheriyyah Fidayyiah & Anr. Vs. Mahesh KishorSaran & Anr., reported in 2014 (2) Mh.L.J. 884 . 6922-wp-10510-20229.In the matter of Malyalam Plantations Limited Vs. Stateof Kerala and Another, the Hon’ble Supreme Court has heldthat at the appellate stage whenever additional evidence issought to be brought on record, the Court should not callupon the other side to admit or deny the evidence and thatadditional evidence cannot be permitted to led in order to fillup lacuna. So far as judgment in the matter of A. AndisamyChetitiar Vs. A. Subburaj Chettiar is concerned, the saidjudgment deals with power of Appellate Court to permitadditional evidence under Order 47, Rule 27. 10.As against this, judgment in the matter of K. R. MohanReddy Vs. M/s. Net Work Inc. Rep. Tr. M.D. takes intoconsideration distinction between clauses (aa) and (b) ofOrder 47, Rule 27. It is held that in the event, a party appliesfor additional evidence under Clause (aa) and establishesbefore the Court that the evidence was not within hisknowledge and could not produced before the Trial Courtdespite due diligence, permission can be granted for leadingadditional evidence at the appellate stage before the stage offinal hearing. It is with respect to Clause (b), the Hon’ble 7922-wp-10510-2022Supreme Court has held that when dealing with anapplication under the said clause, the Appellate Court isbound to consider the entire evidence on record and come at asatisfaction with respect to relevance of evidence by takinginto consideration the entire material on record which can bedone only at the stage of final hearing. The Division Benchjudgment of this Court in the matter of Hasanate TaheriyyahFidayyiah & Anr. Vs. Mahesh Kishor Saran & Anr., also laysdown the same ratio. Rather in paragraph 15 of thejudgment, the Division Bench has categorically expressed thatwhen an application is made either under Clause (a) or (aa),it will be prudent that the same is decided at a stage earlierthan the stage of final hearing.11.In the present case, the evidence that is sought to bebrought on record pertaining to measurement case of the landof the plaintiff, which was carried out on an application madeby the plaintiff. It is not the case of the plaintiff that thedefendant was noticed in the said measurement case. Sincethere is a boundary dispute between the parties, the area ofrespective lands will have some relevance. In that view of the 8922-wp-10510-2022matter, it was for the plaintiff to produce the said documentson record and then to furnish clarification, if any, with respectto the same. The plaintiff has however chosen not to filedocuments at all.12.Having regard to the aforesaid, I am of the consideredopinion, the application falls within the parameters of Clause(aa) of order 41, Rule 27. No fault can be found with thelearned First Appellate Court in deciding the applicationbefore hearing of the appeal in view of law laid down in K. R.Mohan Reddy and Hasanate Taheriyyah Fidayyiah.13.The learned Advocate for the petitioner/plaintiff is rightin a submission that the learned Appellate Court and not tohave called the plaintiff either to admit or to deny thedocument. However, perusal of the order will demonstratethat the learned First Appellate Court has not decided theapplication only on the ground that the plaintiff did not eitheradmit or deny the document. The learned Appellate Court hasrecorded that measurement of land of the plaintiff on theapplication by the plaintiff will have bearing on thecontroversy involved in the matter.
Decision
9922-wp-10510-202214.Having regard to the aforesaid reasons recorded by thelearned Appellate Court, in the considered opinion of thisCourt, no case for interference is made out. The Writ Petitionis therefore rejected.15.Civil Application, if any stands, disposed of.( ROHIT W. JOSHI, J. )Rushikesh/2025