SAROJ Vs. KISANRAO

JUDGEMENT

(1.) Heard Mr. Giramkar, learned counsel for the petitioners.

(2.) The petition challenges the order dtd. 14/3/2023 passed below Exh. 16, which dismissed the application under Order XLI Rule 27 of the Code of Civil Procedure (for short "CPC"), filed by the present petitioners who are the appellants before the learned Appellate Court. It is contended, that the report of the Handwriting Expert, regarding the Sale Deed dated 03 12.1988, was a necessary document which ought to have been permitted to be placed on record as an additional evidence and dismissal thereof prejudices the petitioners/appellants.

(3.) The parameters for exercise of power under Order XLI Rule 27 of CPC, have been enumerated in para 7 of the impugned order and need not be reiterated. The petitioners are the original plaintiffs who had filed a suit for declaration that the Sale Deed dtd. 3/12/1988 claimed to have been executed by them was a bogus document and did not contain the thumb impression of the vendor. The suit has been dismissed by the learned Trial Court by the judgment and decree dtd. 18/2/2019 subsequent to which the petitioners have filed an appeal before the learned District Judge, Amravati. It is at this stage of the appeal, the petitioners got the Sale Deed examined through the Handwriting Expert who has submitted his report on 9/12/2022 regarding the thumb impression, which is sought to be brought on record under Order XLI Rule 27 of CPC. Rule 27 (1)(aa) of Order XLI of CPC which is pressed into service by Mr. Giramkar, learned counsel for the petitioners, holds that an additional evidence can be permitted only if the appellants/petitioners demonstrate that even after due diligence the same could not be brought on record. In the instant matter, Order XLI Rule 27 (1)(aa) of CPC is clearly not attracted for the reason that the report dtd. 9/12/2022 was not in existence at all but was created for the first time during the pendency of the appeal. This was in the circumstance, considering the plea already raised in the original plaint was available for the petitioners/plaintiffs throughout the pendency of the suit inspite of which the same has not been done. The requirement of Order XLI Rule 27 of CPC, is therefore clearly not satisfied. I, therefore, do not see any reason to interfere in the impugned order.