JUDGMENT :

R.V. Ghuge, J.

1. The issue raised in this petition is whether, foundational pleadings regarding a vital document like "Power of Attorney" are necessary for placing reliance upon and for production at a belated stage?

2. The petitioners submit that Respondent no. 2 (Mohanlal Gindodia) is the original defendant no. 2 in the suit and is fully supporting the plaintiff/respondent no. 1 herein. He is a formal party and can be deleted. Hence, deletion is permitted only for the purpose of the cause of action arising in this writ petition.

3. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

4. The petitioners are the legal heirs of the original deceased defendant no.1 (Badrinayaran Palsaniya) in Special Civil Suit No. 222/2009. They are aggrieved by the order dated 29.07.2019 passed by the Trial Court by which, application exhibit 90 filed by the plaintiff seeking permission to produce one office copy and three original documents, has been allowed and costs of Rs. 2500/- has been imposed upon the plaintiff.

5. The contentions of the petitioners/defendants can be summarized as under:-

(a) After the suit was lodged in October, 2009, the Trial Court framed the issues on 03.05.2013.

(b) The recording of evidence of the plaintiff commenced on 14.07.2015.

(c) On 16.07.2019, the cross examination of the plaintiff was concluded.

(d) On 17.07.2019, the plaintiff preferred application exhibit 90 stating therein that he discovered one office copy and three original documents on 16.07.2019 after returning from the court and these four documents would have a direct impact on the decision in the suit and hence, he sought permission to file the said documents.

(e) The four documents are:-

(i) Office copy of the application made by the plaintiff to the District Collector, Jalgaon dated 25.02.1991 for seeking Non Agriculture (NA) permission,

(ii) The original special Power of Attorney (PoA) dated 05.10.1981 given by the deceased defendant Badrinarayan to the plaintiff with respect to his one-third share in the entire suit property for the purposes of carrying out the measurement, conversion to non agriculture, signing plans, etc.,

(iii) The original special Power of Attorney (PoA) dated 07.06.1991 given by the deceased defendant Badrinarayan to the plaintiff authorizing him to perform all such acts as are necessary in respect of conversion of the agricultural land to non agricultural land, and

(iv) The original sanctioned layout of the suit land consisting 76 plots dated 10.10.1990.

(f) There is no foundational pleading in the plaint as well as in the affidavit in lieu of examination in chief pertaining to these documents, especially the two PoA documents.

(g) The pleadings in paragraph 11(a), (b) and (c) of the plaint do not indicate any reference to the original PoA documents.

(h) The plaintiff has subjected himself to cross examination and after the recording of his testimony is concluded, one cannot find any reference to such documents, which are sought to be produced at a later stage.

(i) Order VII Rule 14(2) and (3) of the Code of Civil Procedure would be a legal obstacle to the plaintiff in filing the said documents.

(j) Order XIII Rules 1 and 2 would also not permit the production of such documents.

(k) The documents pertain to the years 1981 to 1991 and were purportedly in the custody of the plaintiff, which could have been produced along with the plaint or prior to the settling of the issues.

(l) In the absence of the foundational pleadings, these documents can be branded as being manufactured by the plaintiff.

(m) As there are no pleadings in the plaint as well as in the affidavit in lieu of examination in chief, it would tantamount to the plaintiff having waived his right to refer to the said documents even if it is presumed, without admitting, that the said documents are in existence.

(n) The Trial Court has failed to apply it's mind to the case and has mechanically permitted the plaintiff to produce the documents