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6 The Lower Appellate Court considered the said Application (Exhibit 73) and has by the impugned order dated 19/10/2011 allowed the same. The gist of the reasoning of the Lower Appellate Court as can be seen from the impugned order is that the evidence as regard the execution of the Will has been recorded almost 25 years thereafter. The Lower Appellate Court has observed that the admissions are not conclusive proof and can be proved to be wrong or could be very well be explained. The Lower Appellate Court observed that the exercise of leading additional evidence would assist the Court to enable it to pronounce judgment. The Lower Appellate Court observed that the same evidence which is sought to be produced may reinforce the Defendants' stand, if on comparison of signatures it turns out that the will has been attested by Hanmant Narayan Barge. The Lower Appellate Court observed that the alleged admissions given by the Plaintiff would also there for the Court's consideration while appreciating the evidence. The Lower Appellate Court lastly observed that since the execution of the Will has been proved in the Trial Court, the question whether both the attesting witnesses were not alive for being examined in proof of the Will or whether one of them lgc 7 of 13 9087.11 was very much there but has not been examined can be decided with the additional evidence, which is sought to be adduced. The Lower Appellate Court has also observed that the signature of the 2 nd attesting witness is in "Modi" script and neither the Court, nor the advocates appearing for the parties could state that the middle name in the signature is "Nana" or "Narayan". Hence what flows from the impugned order passed by the Lower Appellate Court is that the exercise of permitting the Plaintiff to lead additional evidence would assist the Court and enable it to pronounce judgment. As indicated above, it is the said order dated 19/10/2011 which is taken exception to by way of the above Writ Petition.

No doubt the Appeal was heard on two occasions i.e. in the year 2008 and thereafter in the year 2011 and it is on 28/9/2011 that the instant Application (Exhibit 73) came to be filed. The Application as indicated above is founded on the fact that the Plaintiff at the relevant time when he was cross examined was 77 years old and it was his case that he was not able to understand the import of the question and therefore answered to the effect that the signature on the Will is that of Hanmant Narayan Barge. It is further the case of the Plaintiff that the person by name of Hanmant Narayan Barge was the Sarpanch of the lgc 10 of 13 9087.11 concerned village from 1972-1978 and that the signature on the copy of the Will was shown to his son Dilip who denied that the signature was that of his father. The Plaintiff therefore wants to adduce the evidence in respect of the said signature being not of Hanmant Narayan Barge so that the document of the contemporaneous time of Gram Panchayat wherein the signature of said Hanmant Signature was appearing can be compared with the signature on the Will. It is trite that in so far as the admissions are concerned, they are not conclusive and that they can be explained away. It is required to be noted that the signature of the 2nd attesting witness i.e. either Hanmant Narayan Barge or Hanmant Nana Barge is in "Modi" script and it is difficult for the parties to state as to whether the middle name is either "Nana" or "Narayan". It is to elucidate the aforesaid aspect that the additional evidence in that respect becomes crucial. It is also required to be borne in mind that the Application has been filed by the Plaintiff who has succeeded in the Trial Court and therefore the Application is not by a party who has lost in the Trial Court. The Lower Appellate Court as can be seen from the impugned order has after considering the case laws cited before it, held that to pronounce judgment that the additional evidence can be let in. This is one of the circumstances covered by Order XLI Rule 27 of the Code of Civil Procedure and more precisely Order XLI Rule 27(1)(b) of the Code of Civil Procedure. At the appellate stage therefore it seems that the dispute in a way has crystallized as to whether the signature is that of Hanmant Nana Barge who was no more at the time when lgc 11 of 13 9087.11 the evidence was led by the Plaintiff or, whether it is the signature of Hanmant Narayan Barge who was very much alive at the time when the Plaintiff led the evidence. The said aspect therefore would have an impact on the decision that would have to be rendered in the Appeal. Once the Appellate Court deems it appropriate to let in evidence which it feels would help it in pronouncing judgment, the question is whether this Court should interfere with the order passed by the Lower Court. The principles of law as laid down by the Apex Court in the judgments (supra) which have been cited on behalf of the Petitioner original Defendant No.2 cannot be said to have been violated by the Lower Appellate Court in any manner in allowing the Application (Exhibit 73).