PRABHAKAR NANE Vs. NAGPUR GEETA MANDIR TRUST NAGPUR

JUDGEMENT

(1.) BY this petition, filed under Articles 226 and 227 of Constitution of india, the original appellants in Regular Civil appeal No. 195/2004 have challenged the order dated 13-7-2004 passed on an application under Order 41, Rule 27 of CPC whereby the said application came to be rejected. This court has on 9-8-2004 issued notice before admission for final disposal and had granted ad interim orders in terms of prayer elause (B)thereby further proceedings in said RCA have been stayed. Hence, Rule. Rule made returnable forthwith. Heard by cnsent of parties.

(2.) REGULAR Civil Suit No. 1/2001 was instituted by present respondent against the petitioners for a decree of possession. The respondents are landlords and the petitioners are tenants. The ground, on which the decree of possession has been sought, is non-payment of rent by tenants. The Small Causes Court, nagpur has on 15-3-2004 decreed this suit with costs and has directed the petitioners to deliver vacant possession of suit premises by 16th april, 2004. The defendants challenged this judgment and decree of Small Causes Court in regular Civil Suit No. 195/2004, which is presently pending before 14th Ad-hoc additional District Judge, Nagpur. The petitioners/defendants stated that they have paid amount of Rs. 55,000/- to the respondent by cheques. The learned trial Court has found that the petitioners did not examine bank officer to show that such amount was, in fact, credited in the account of respondent/plaintiff. Further the trial Court found that even if such payment is admitted, it is not in respect of the suit premises.

(3.) IT is in this background the petitioners filed an application under Order 41, rule 27 of CPC, seeking permission to produce an additional evidence in their appeal. The petitioners have stated that during pendency of suit, they have produced some documents before the trial Court and they wanted to file more documents relating to the amount paid by them to the respondent/trust. However, though applications for grant of certified copies of these documents were already made before the Deputy Charity Commissioner, Nagpur, certified copies could not be received in time so as to enable them to place on record before the trial Court and the trial court was not inclined to grant further time to them to produce those documents. The petitioners have stated that after judgment and decree delivered by trial court, they received those certified copies and sought to produce the same as additional evidence to establish their claim of payment to respondent/trust. It is alleged that the petitioners were diligent while seeking certified copies, but due to paucity of rime, the same could not be filed on record before the trial court. This application was strongly opposed by present respondent/trust and they stated the provisions of Order 41, Rule 27 cannot be invoked to fill in the lacuna. It is further mentioned in the reply that there are absolutely no reasons given as to why the petitioners did not seek those documents well within time and prior to the judgment of the trial court. It was stated that the application, as filed, is false, frivolous and a prayer was made to reject the same with costs. The learned Appellate Court has considered this application on 13-7-2004, and after hearing both the sides, has rejected the said application. I have heard Advocate P. C. Madkholkar for the petitioners/tenants and advocate M. G. Bhangde for the respondent/ trust - landlord.