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Judgment
Joshi A.H., J.—Rule is made returnable forthwith, and is heard finally by consent of parties.
Heard learned Advocate Mr. P.K. Mishra for the petitioners and learned Advocate Mr. B.N. Mohta for the respondent sole.
The petitioners have challenged the order passed below Exh. 37. By this application, petitioners had applied for permission to file on record the evidence relating to the location of suit house, to prove the fact that the suit house is located within the Slum Area notified under the statute.
Learned First Appellate Judge found that the petitioners have failed to prove that in spite of due diligence, the evidence was not available and, therefore, the petitioners have failed to make out a case under Rule 27 of Order 41 of Civil Procedure Code.
The application was opposed, which grounds are reiterated in this Court, contending that:
...Further, it is submitted that in fact the appellant has not made out a case to grant him permission as per the provisions laid down under Order 41, Rule 27 of the C.P.C. Therefore, it is prayed to reject the application, in support of his above facts the respondent has produced on record the copy of citations and prayed to reject the application.
(quoted from order impugned from pages 19 and 20 of the paper-book of writ petition).
The crux of the matter is, whether the production of document, in question, is liable to be allowed?
Copy of document sought to be filed is placed on record of this petition at Annexure-A [page 10]. It is a copy of Gazette Notification, which is a public document. Moreover, there is a bar of eviction in relation to the house which is alleged to be subject-matter of a Slum Area notified as such. Thus, filing of this document and facts sought to be proved thereby touch to the jurisdictional question.
If the proceedings are concluded in absence of this evidence, the objection, which will be left undecided, will be of such a nature that it could be raised even in the execution proceedings, as the decree, which may be passed, could be objected as null and void.
In this background, the question, that really arises, is whether the document of such a nature, which touches to the jurisdiction of the case, should be allowed to be produced by leniently construing the test of strictness as to diligence, as against its apparent meaning or plain reading of Rule 27 of Order 41 of Civil Procedure Code?