JUDGMENT 1. - Heard learned counsel for the parties.The main grievance of the petitioner is that an application was filed by him before the lower appellate Court u/O. 41 R. 27 CPC, copy of that application was duly served on the opposite party and the case was posted on 24.4.1999 for reply and arguments on that application, the learned counsel for the respondents sought adjournments and thereafter on 4.8.1999 the reply to that application was filed, the case thereafter went on being adjourned and the appeal was dismissed on merits on 2.12.1999 without deciding the application filed u/O. 41 R. 27 CPC. According to the learned counsel in adopting this course the learned lower appellate Court has committed a jurisdictional error which has occasioned substantial failure of justice. 2. The next contention of the learned counsel is that since in the learned trial Court both the parties had their different versions as to the rate of monthly rent in as much as according to the plaintiff it was Rs. 700/- per month while according to the defendant it was only Rs. 100/- per month. 3. Before making provisional determination under section 13(3) the learned trial Court should have recorded the statements of the parties u/O. 10 R. 1 CPC. To this effect a specific request was made before the learned trial Court, but the same has been turned down which amounts to jurisdictional error. The learned counsel in support of this submission has placed reliance on judgment of this Court dated 4.5.2000 passed in S.B. Civil Revision No. 1059/1997 Kasant v. Habiban . 4. Replying to this submission, the learned counsel for the non-petitioner contends that since the appeal has been decided on merits, the mere fact that the application u/0.41 R. 27 was not separately decided does not matter at all. Replying to other contentions it is contended that since there is documentary material on record to prima facie show that the monthly rent of the premises was Rs. 700/- per month and those receipts do bear the signature of the defendant and that the document produced by the defendant relate to the payments made for Lime and Khadi and do not represent to be about payment of any rent, as such the recording of the statements of the parties u/O. 10 R. 1 CPC was not necessary and the impugned orders do not require any interference. 5. 5. The plaintiff has produced photostat copies of certain counterfoils of the year 1993 and 1994 purporting to the signed by the defendant. As against this, the defendant has filed photostat copies of the nothings in the diary alleging them to be signed by the plaintiff, according to which the rent was paid upto 5.3.1997 at the rate of Rs. 100/- per month. In the plaint the rent has been claimed to be outstanding since 1.7.1993. 6. Having heard the learned counsel, in my view, deciding the appeal without deciding the application u/O. 47 R. 27 is patently a jurisdictional error. The application was required to be heard and decided on its own merits, normally alongwith the appeal or if so pressed by the parties, may be before deciding the appeal, but in any case it should not be left undecided. This clearly amounts to jurisdictional error and vitiates the appellate Courts order. The question thereafter is as to what course should be followed, being as to whether the matter should be sent back to the lower appellate Court for deciding the appeal afresh, or I should consider the trial Court's order on its own merits? Normally, I would have remitted the matter to the appellate Court, but here there are significant circumstances viz. that the receipts filed by the plaintiff to bear printed numbers and the four receipts are receipts No. 3, 5, 7 & 9, they purport to be dated 7.4.1993, 9.10.1993, 7.2.1994 & 7.3.1994 respectively. Vide these receipts rent for the months of 1.3.1993 to 31.3.1993, 1.4.1993 to 30.4.1993, 1.5.1993 to 31.5.1993 & 1.6.1993 to 30.6.1993 respectively is said to have been received. Thus these receipts purport to have been issued with a long time gap and at the same time purport to receive monthly rent for precisely sequential months and at the same time without anything being there to show as to what happened to the rent of intervening months between the period 7.4.1993 to 7.3.1994. Likewise the documents produced by the petitioner also, do require a consideration in as much as whatever payments purport to have been made for Lime, Khadi, Cement etc. do mention about that, while the payments said to have been made on document finding place at page C-12/4 of the record of the learned trial Court do not mention as to for what consideration this amount was paid. do mention about that, while the payments said to have been made on document finding place at page C-12/4 of the record of the learned trial Court do not mention as to for what consideration this amount was paid. Since difference in the rate of monthly rent is so high that the interest of justice require that before making the provisional determination of rent statements of the parties u/O. 10 R. 1 should be recorded. 7. Accordingly the revision petition is allowed. The impugned orders are set aside. The matter is sent back to the learned trial Court to make a fresh provisional determination of rent after recording the statements of the parties u/O.10 R. 1 CPC. However, till that determination is made, the petitioner shall continue to deposit monthly rent month by month by 15th of next succeeding month at the rate of Rs. 700/- per month which rent shall not be withdrawn by the plaintiff and this payment shall be subject to the determination that may be made by the learned trial Court under section 13(3). It is however, made clear that the learned trial Court should make an earnest endeavour to find out as to what was the monthly rent last paid namely whether it was Rs. 100/- per month or Rs. 700/- per month for making determination under section 13(3).Revision allowed. *******