The court found that late applications to submit additional evidence require valid justification; lack of relevance and failure to produce during trial led to dismissal.

1.Rule. Rule made returnable forthwith. With the consent of learned counsel for the parties, the petition is heard fnally.

2. The Petitioner-Defendant No.5 has challenged order dated 26/04/2018 whereby learned Judge, City Civil Court, Greater Bombay, has declined leave to adduce additional evidence. In Civil Suit No.7468 of 1983.

3. The brief facts necessary to decide this petition are as under:-

The Respondent No.1 -Plaintif (hereinafter referred to as ‘Plaintiff’

instituted a suit for recovery of money and possession of immovable and movable properties more specifcally described in the plaint. The case of the Plaintif -Company is that it had employed Rakesh Kapoor (Defendant No.1’ brother of the Defendant No.5, as a Chief Accounts OfÏcer. The Plaintif alleged that from May-1982 to October-1982 the Defendant No.1 defalcated and misappropriated an amount of Rs.47,01,135/- from Plaintif-Company and purchased several immovable and movable properties from the defalcated /embezzled amount. It is averred that the Defendant No.1 converted his sole proprietorship concerns into partnership frms and transferred the said properties in the names of these partnership frms of which Defendants are the partners. The Plaintif claims that the deeds of partnership are sham, bogus and fabricated and that the transfer of these immovable and movable properties is a colourable transaction without any consideration. Based on these pleadings the Plaintif fled a suit for recovery of Rs.59,04,736- with interest @ 21% on the principal amount of Rs.47,01,135/-. The Plaintif sought declaration that the partnership deeds are void and invalid and has prayed for possession of the said properties allegedly purchased from the embezzled amount and transferred in the names of the partnership frms.

4. The Defendants contested the suit by fling written statements in which they disputed defalcation/embezzlement of the amount by Defendant No.1. The Defendants denied purchase of the properties described in the plaint were from embezzled amount and fraudulent transfer of these properties in the names of the partnership frms. They have specifcally pleaded that the said properties were purchased from the money derived from sale of the family properties.

5. Some other relevant facts are that pursuant to the FIR lodged by the Plaintif crime was registered against Defendant No.1- Rakesh Kapoor for ofences of cheating, misappropriation, etc. In the course of investigation the amount allegedly misappropriated and the properties purchased therefrom were recovered/seized. By order dated 08/03/1984, this Court appointed the Court Receiver and put the Court Receiver in charge of the money and properties recovered/seized in criminal proceedings with direction to allow the Defendants to occupy the properties on terms including payment of compensation as the Court Receiver deems ft and proper. It is on record that the Court Receiver has permitted Defendant No.5 to occupy flat No.501,502, which is one of such seized properties, on payment of compensation/ royalty.

6. It is also a fact that the trial has concluded and Defendant No.1 has been held guilty of the alleged ofence. During the pendency of the criminal appeal fled by Defenand No.1, the Plaintif and Defendant Nos.1, 2 and 7 fled consent terms wherein these Defendants consented that the Plaintif is entitled to recover Rs.59,04,735/- with interest. These Defendants also conceded that the properties described in the plaint, were purchased from the amount withdrawn from the Plaintiffs account and that the Plaintifs are entitled for possession of the said partnership properties on as is where is basis.

7. The Defendant No.5 fled a Notice of Mot