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ITEM NO.104 COURT NO.12 SECTION IX

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No(s). 3532/2008

CHANDRESHWAR BHUTHNATH DEVASTHAN Appellant(s)

VERSUS

BABOY MATIRAM VARENKAR Respondent(s)

Date : 02/05/2017 This appeal was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE ARUN MISHRA

HON'BLE MR. JUSTICE AMITAVA ROY

For Appellant(s)

Mr. Dhruv Mehta, Sr. Adv.

Ms. Shobha,Adv.

Mr. Bonny Mehra, Adv.

For Respondent(s)

Mr. Vinay Navare, Adv.

Ms. Gwen Kartika, Adv.

Ms. Abha R. Sharma,Adv.

UPON hearing the counsel the Court made the following

O R D E R

Appeal is allowed to the extent indicated in the

signed order.

(NEELAM GULATI)

COURT MASTER

(TAPAN KR. CHAKRABORTY)

COURT MASTER

(Signed order is placed on the file)

Digitally signed by

NEELAM GULATI

Date: 2017.05.12

15:19:17 IST

Reason:

Signature Not Verified

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL

APPEAL No(s).3532 OF 2008

CHANDRESHWAR BHUTHNATH DEVASTHAN Appellant(s)

VERSUS

BABOY MATIRAM VARENKAR Respondent(s)

O R D E R

Heard learned counsel for the parties.

The appeal has been preferred against the

judgment and order passed by the High Court of

Bombay at Goa, Panaji, Goa in Second Appeal No. 100

of 2005. The plaintiffs filed a suit against

Devasthan for issuance of permanent injunction from

disturbing his possession and other co-owners in

respect to the suit property comprised in survey

no. 160/0 of Mulem Village of Salcete Taluka.

The plaintiff came with the case that he was

co-owner of the suit property along with family

members. Property was known as “Sainolem” which

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was predominantly paddy land in hilly tract.

Devasthan had illegally created obstruction. The

defendant filed its written statement and set up

its own ownership. The suit was decreed by the

trial court. The first appeal preferred by

Devasthan had been dismissed by the first appellate

court. Second appeal also met the same fate.

Hence the appeal.

The defendant in support of the title had

filed certain documents in Portuguese language in

trial court which had been exhibited as 'Exhibit

E'. The English translation of the said document

was submitted before the First appellate court.

The first appellate court in para 43 of its

judgment observed that there was no application

filed under the provisions of Order XLI Rule 27 of

the Code of Civil Procedure, 1908 (in short 'the

CPC')for producing the additional translation of

the original document. As such translation could

not be taken on record prayer had been disallowed

for taking english version on record. High Court

had also approved the aforesaid view and dismissed

the second appeal on the ground that the prayer

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should have been made under Order XLI Rule 27 of

the CPC to take the translated document on record.

In the absence of the application the document

could not have been taken on record.

We have heard learned counsel for the parties

at length. We are of the considered opinion that

when the document had been tendered in evidence in

Portuguese language, at the time it was not

objected. Its translated version into English

language could have been filed before the court any

time, there was no requirement to file an

application for production of the additional

evidence under the provisions of Order XLI Rule 27

of the CPC which deals with the production of

additional evidence in the appellate court. The

document in question in Portuguese language had

alre