23-wp-13071-2019.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO.13071 OF 2019 Dada Shankar Bavkar, Since Deceased Through LRs. & Ors. …..Petitioners Vs. Jayaram Abhiman Ragade & Ors. …..Respondents Mr. Prasad Kulkarni with Mr. Nakul Shukla, Mr. Amol Kanaki, Mr. Amol Deshinge & Mr. Tejas Dalavi, for the Petitioners. Mr. Sharad Bhosale with Mr. Saiprasad Patil & Ms. Sujata Lohar, for Respondent Nos.1 to 4. CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd SEPTEMBER 2025 P.C.:- 1. Heard learned Advocate appearing for respective parties. 2. Present Writ Petition takes exception to order dated 14th October 2019 passed by learned District Judge, Barshi below Application at Exhibit 43 in Regular Civil Appeal No.9 of 2012. 3. Petitioners are original defendants in Regular Civil Suit No.370 of 1985, which was a suit filed for partition and separate possession of suit property. Learned trial Court decreed suit granting partition Gaikwad RD 1/4 23-wp-13071-2019.doc in respect of property including property purchased by Petitioners. Aggrieved Petitioners filed appeal before learned District Judge. During pendency of appeal, they filed an application below Exhibit 43 purported to be under Order 41 Rule 27 of Code of Civil Procedure. Perusal of Application shows that Petitioners are contending that they were not given sufficient opportunity to cross- examine plaintiff, so also lead oral evidence on the point that they being bona fide purchaser. Accordingly, they sought permission to cross-examine Plaintiff and adduce further oral evidence at appellate stage. Respondent opposed the application. Learned District Judge, Barshi rejected said application. Hence, this Writ Petition. 4. Supreme Court of India in case of Union of India v. Ibrahim Uddin & Anr.1 has considered scheme under Order 41 Rule 27 of CPC and observed in paragraph No.52 as under: “52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional 1 (2012) 8 SCC 148. Gaikwad RD 2/4 23-wp-13071-2019.doc evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not. remains inconsequential/ inexecutable and is liable to be ignored.” 5. Looking to the aforesaid observations any application seeking permission to adduce additional evidence at an appellate stage has to be considered at the time of final hearing of the appeal after appreciating evidence on record. 6. In light of aforesaid exposition of law, learned counsel appearing for Petitioners, on instructions, submits that Petitioners be permitted to not press their application at Exhibit 43 with liberty to raise all such contentions at the time of final hearing of the appeal. 7. In that view of the matter, it is desirable that Appellate Court to consider all prayers made in Application at Exhibit 43 at the time of hearing of Appeal and take decision after appreciating entire evidence on record as to whether Petitioners have made out the case Gaikwad RD 3/4 23-wp-13071-2019.doc for permitting them to cross-examine witness of Plaintiff or lead additional evidence in appeal. Hence, following order is passed. ORDER i) Writ Petition is partly allowed. Impugned order passed below Exhibit 43 is quashed and set aside. ii) Petitioners are permitted to not press application at Exhibit 43, with liberty to raise contentions in the aforesaid application at the time of final hearing of appeal. iii) Learned District Judge shall expeditiously decide appeal and in any event, within a period of nine months from today. iv) Writ Petition stands disposed of with aforesaid liberty. (S. G. CHAPALGAONKAR, J.) Gaikwad RD 4/4 RAJU DATTATRAYA GAIKWAD Digitally signed by RAJU DATTATRAYA GAIKWAD Date: 2025.09.23 15:02:20 +0530