By this petition, filed under Article 226 and 227 of Constitution of India, the original Appellants in Regular Civil Appeal N05195/2004 have challenged the order dated 13-7-2004 passed on an application 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 clause (B) thereby further proceedings in said RCA have been stayed. Hence, Rule. Rule made returnable forthwith. Heard by consent 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 time, 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.

4.Advocate Madkholkar placed reliance upon the judgment reported at AIR 1974 SC 2069 [LQ/SC/1974/249] (The Official Liquidator Vs. Raghava Desikachar and Ors.) and by pointing out para 5 thereof, he stated that the learned appellate court ought not to have rejected the application under Order 41, Rule 27 and should have kept it pending. The relevant observations in that judgment from para 5 read as under :

"... it was held that the legitimate occasion for admitting additional evidence in appeal is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the court, of fresh evidence and an application is made to import it. The true test is whether the appellate court is able to pronounce judgment on the materials before it, without taking into consideration the additional evidence sought to be adduced."

5.He further relies upon the judgment reported at 2001 (10) SCC 619 [LQ/SC/2000/1491] (State of Rajasthan Vs. T.N. Sahani & Ors.) to support his arguments. Para 4 of this judgment reads as under :

"It may be pointed out that this Court as long back as in 1963 in K. Venkatakramiah Vs. Seetharama Reddy pointed out the scope of unamended provision of Order 41, Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on. the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner."

He, therefore, states that the learned appellate court ought to have considered the appeal on merits and thereafter should have considered the effect of documents, which the petitioners sought to file on record by moving an application under Order 41, Rule 27 and, therefore, the said application should have been considered at the stage of final hearing of the appeal.

6.He contends that the documents produced by him on record, clearly show that the amount was paid by petitioners to respondent by cheques and further in the letter, which was forwarded on 6-1-1997, the purpose for which the said amount was paid, is also mentioned. If the said letter is perused, it points out that the amount of Rs.55,000/- paid by petitioners to respondent was to be adjusted towards payment of rent. The total amount of rent for Block Nos.24 and 26 was Rs.385/- and the learned counsel points out that the respondent/trust was requested by the said letter to deduct the said amount from amount of Rs.55,000/- every month and to forward a receipt therefor by 5th of each month. He further shows that the certificate dated 3rd February, 2004 sought to be produced on record, as issued by Bank of Maharashtra, clearly shows that the amount of Rs.55,000/- has been credited in the account of respondent in two installments i.e. on 31-3-1995 and 25-4-1995 respectively. He contends that consideration of these documents by appellate court, while hearing the appeal on merits, would have definitely made difference.

7.As against this, Advocate Bhangde for respondent, states that there is absolutely no justification given as to why these documents could not have been filed before trial court before delivery of the judgment. He points out that the documents are obtained on 12-4-2004 and application for certified copy thereof was made on 8-4-2004. The suit has been decided on 15-3-2004 and hence at that time these documents were not at all in possession of the petitioners. He, therefore, contends that the entire reasoning given by petitioners that they sought time from the trial court to produce these documents, or they could not have produced these documents, because of paucity of time, are false, and the learned appellate court was justified in rejecting the application under Order 41, Rule 27 for production thereof. He relies upon the judgment reported at 1997 (6) SCC 507 (Gurdev Singh & Ors. Vs. Mehnga Ram & Anr.) to contend that the High Court should not, in revisional jurisdiction, interfere with such interlocutory orders at interim stage. He relies upon the observations made by the Honble Apex Court in para 2 of this judgment, which read as under:

"2. The High Court in the impugned order exercising jurisdiction under Section 115, CPC took the view that the order of the appellate court could not be sustained. In our view the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate court. The reason is obvious. The appellate court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court."

8.He further relied upon the judgment of Honble Apex Court, reported at 2001 (1) SCC 309 [LQ/SC/2000/1621] (Mahavir Singh and Ors. Vs. Naresh Chandra & Anr.) and states that when the learned appellate court has found that it is not necessary to allow the application, High Court cannot, in exercise of its powers under Section 115 of CPC, interfere with such order, particularly when whole appeal is not before the court. The relevant observations as contained in para 5, at page 314 of the said judgment, reads as under:

".... Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115, CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41, Rule 27, CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115, CPC. In this regard, we may notice the decision of this Court in Gurdev Singh Vs. Mehnga Ram in which the scope of exercise of power under Section 115, CPC on an order passed in application filed under Order 41, Rule 27, CPC was considered. When this decision was cited before the High Court, the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We, do not, think so. The High Court ought not to have interfered with such an order."

He argues that the limitations which are applicable to jurisdiction will apply with equal vigour even in exercise of writ jurisdiction in the present controversy. He contends that what this court could not do, in exercise of revisional jurisdiction under section 115 of CPC, it cannot do as in writ jurisdiction.

9.Having heard both the sides and after considering the case law, mentioned above, it is apparent that the learned appellate court has considered the relevant aspects for grant of permission governing under Order 41, Rule 27 of CPC. The appellate court has found that the documents, which petitioners want to produce on record are the reports of its Auditor relating to account of the trust audited under the provisions of Bombay Public Trusts Act for the period ending on 31-3-1994 and then 31-3-1995. The appellate court has observed that these reports were already available with the respondent/ trust and were already in existence and still no efforts have been made by petitioners to get those reports on record before the learned trial court. The appellate court has found that, on the contrary, no notice has been issued to respondent/trust for production of these documents before the trial court. It has thereafter found that, therefore, there was no question of refusal by trial court to admit these documents during trial. It also finds that there is nothing on record to establish that, any request, was made to trial court for production of documents and, the learned trial court refused to admit the documents on record. The appellate court, therefore, holds that the first and second ingredients of Order 41, Rule 27 are not satisfied and production of documents, therefore, cannot be allowed. It has further held that production of additional evidence cannot be allowed to fill up the lacuna and the provisions of Order 41, Rule 27 are not intended to enable the petitioners to patch up the weak part of their case. It has thereafter expressly recorded that it (appellate court) also is, not of the opinion that additional evidence is required, to enable it to pronounce proper judgment. The appellate court has thereafter concluded that the third ingredient of Order 41, Rule 27 is also not present in the matter. It has therefore, rejected the said application under Order 41, Rule 27.

10.Thus, the appellate court has considered the provisions of Order 41, Rule 27, and the situations, in which permission to produce such documents can be granted. It has applied its mind to the requirements of said provision and thereafter has found that the same are not met with by the petitioners and has, therefore, rejected the application. It is thus clear that the appellate court has applied its mind correctly and there is no jurisdictional error or any error apparent on the face of record or any perversity in the matter. No such error or perversity is pointed out by the petitioners. Even in para 5 of the judgment of the Apex Court, reported at AIR 1974 SC 2069 [LQ/SC/1974/249] (cited supra), the Apex Court has held that the Court has to examine the facts and circumstances of each case. Hence, it is clear that there is no scope for exercising the jurisdiction under Articles 226 and 227 of Constitution of India in this matter. As observed by the Honble Apex Court, it is not expected by this Court to interfere at interim stage when the appeal is pending before the appellate court for final hearing. The appellate court was within its jurisdiction in deciding the said application one way or the other, and if said order is found wrong on merits, it would always be open to respondent/trust to challenge the same in accordance with law, if they are required to file the second appeal or civil revision before the superior court, challenging the final adjudication by appellate court.

11.The apex court has considered this aspect also in the judgment reported at JT 2004 (6) 425 (Thirumala Tirupati Devasthanams & Anr. Vs. Thallappaka Ananthacharyulu & Ors.) Para 18 of this judgment considers the situations in which this Court can issue writ of prohibition or writ of certiorari. The said para 18 is reproduced as under

"18. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds, to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental,.rights. The principles, which govern exercise of such power, must be strictly observed. A writ of prohibition must be issued only in rarest of rare cases. Judicial discipline of the highest order has to be exercised whilst issuing such writs. It must be remembered that the writ jurisdiction is original jurisdiction distinct from appellate jurisdiction. An appeal cannot be allowed to be disguised in the form of a writ. In other words, this power cannot be allowed to be used "as a cloak of an appeal in disguise". Lax use of such a power would impair the dignity and integrity of the subordinate court and could also lead to chaotic consequences. It would undermine the confidence of the subordinate court. It was not even argued that there was total lack of jurisdiction in the civil court. It could not be denied that the civil court before which the suit was pending, had powers to decide on the maintainability of the suit and to decide on questions of its jurisdiction. The civil court had jurisdiction to decide whether the suit was barred by section 14 of the said Act or on principles of res judicata/estoppel. Thus unless there was some very cogent or strong reason the High Court should not, have prevented the court of competent jurisdiction from deciding these questions. In other words the High Court should not usurp the jurisdiction of the civil court to decide these questions. In the impugned judgment no reason, much less a cogent Of strong reason, has been given as to why the civil court could not be allowed to decide these questions. The impugned judgment does not state that the civil court had either proceeded to act without or in excess of jurisdiction or that it had acted in violation of rules of natural justice or that it had proceeded to act under law which was ultra vires or unconstitutional or proceeded to act in contravention of fundamental rights. The impugned judgment does not indicate as to why the High Court did not consider it expedient to allow the civil court to decide on questions of maintainability of the suit or its own jurisdiction. The impugned judgment does not indicate why the civil court be not allowed to decide whether the suit was barred by virtue of section 14 of the said Act or on principles of res judicata/ estoppel. To be remembered that no fundamental right is being violated when a court of competent jurisdiction is deciding, rightly or wrongly, matters before it."

12.Thus, perusal of above paragraph clearly reveals that when the order passed by appellate court was within its jurisdiction and it has not acted in violation of rules of natural justice or it has not acted under any provision of law, which would be ultra vires or unconstitutional or has not breached any fundamental right, writ cannot be issued.

13.In so far as argument of learned advocate for petitioners, about keeping such application under Order 41, Rule 27 pending and its final consideration at the stage of final hearing of appeal itself, is concerned, it is apparent from the facts above that it is too late to raise this issue. In fact, no such argument appears to have been advanced before the learned appellate court and further the appellants have taken a chance of decision on the said application in their favour by arguing that application. They never requested the appellate court to postpone its hearing and to consider it with appeal itself on merits. However, the entire tenor of the application is such that the appellants/present petitioners have tried to justify late production of the documents on the ground that said documents were not available to them during pendency of proceedings before the trial Court. In the said application, it is not whispered that the appellate court may require additional evidence to enable it to consider the controversy in better manner. Hence the said argument cannot be entertained in this petition and is liable to be rejected.

14.In view of the law laid down by Honble Apex Court, and also considering the fact that the remedy of challenging the said interlocutory order along with final judgment delivered by appellate court, is available to the petitioners/tenants, no case is made out for exercise of writ jurisdiction in this case. The writ petition, therefore, fails and is accordingly dismissed in accordance with law.