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2005 DIGILAW 194 (PNJ)

Ashok Kumar v. Surinder Kumar

2005-02-04

V.M.JAIN

body2005
Judgment 1. This Regular Second Appeal has been filed by defendant appellant Ashok Kumar, against the judgments and decrees of the Courts below, whereby suit filed by Surinder Kumar, plaintiff was decreed by the trial Court and the appeal filed by Ashok Kumar, defendant was dismissed by the learned Addl. Distt. Judge. 2. At the time when the appeal came up for motion hearing before me on 16-8-2002, it was submitted before me by the counsel for the defendant appellant that as per instructions received by him from the local counsel at Jalandhar, the application under Order 41, Rule 27, CPC, filed by the defendant appellant before the learned Additional District Judge had not been decided even though the main appeal had been decided. Accordingly, the appeal record was ordered to be summoned for perusal. When the record was received, a perusal thereof showed that on 7-12-2001. Ashok Kumar, defendant appellant had filed an application under Order 41, Rule 27, CPC, for production of additional evidence during the pendency of the appeal and that notice in the said application was given to the plaintiff respondent, who had filed reply and thereafter the case was adjourned for arguments in the appeal as also on the application under Order 41, Rule 27, CPC. The appeal record further showed that without deciding the said application for additional evidence, the learned Addl. Distt. Judge had dismissed the appeal. Resultantly, notice of motion was ordered to be issued to the plaintiff respondent and in the meanwhile the dispossession of the appellant was ordered to remain stayed till further orders. In pursuance of the notice of motion, learned counsel has put in appearance on behalf of the plaintiff respondent. 3. I have heard the learned counsel for the parties and have gone through the record carefully. 4. After hearing the learned counsel and perusing the record, in my opinion, the following substantial question of law arises for determination in this appeal :- "Whether the learned Additional District Judge, could have disposed of the appeal even without deciding application for additional evidence under Order 41, Rule 27, CPC, even though the said application had been filed during the pendency of the appeal, in which notice was given to the other side and the other side had filed reply and the case was adjourned for arguments in the main appeal as also in the application for additional evidence". 5. The learned counsel appearing for the plaintiff respondent conceded before me that the application for additional evidence filed by the defendant appellant before the lower appellate Court had remained undecided. This statement was made by the learned counsel after perusing the lower appellate Court file. 6. After hearing the learned counsel and perusing the record, in my opinion, the aforesaid substantial question of law arising in this appeal has to be decided in favour of the defendant appellant and the judgment and decree passed by the learned Additional District Judge have to be set aside and the case has to be sent back to the learned Additional District Judge for deciding the appeal afresh in accordance with law. 7. As referred to above, the defendant appellant had filed an application under Order 41, Rule 27, CPC for production of additional evidence during the pendency of the appeal. Notice in the said application was given to the other side, who had filed the reply and the case was fixed for arguments in the main appeal as also on the application for additional evidence. However, without deciding the application for additional evidence, learned Additional District Judge, proceeded to dismiss the appeal filed by the defendant appellant. Under these circumstances, in my opinion, the decision of the appeal without deciding the application for additional evidence has resulted in miscarriage of justice. In my opinion, it was the duty of the lower appellate Court to have decided the application for additional evidence and could not have decided the appeal without deciding the aforesaid application for additional evidence. 8. Learned counsel for the plaintiff respondent submitted before me that even if the learned Additional District Judge had failed to decide the application for additional evidence, no case was made out for remanding the case to the lower appellate Court for decision of the appeal afresh. Reliance was placed on Sohan Singh v,. Gurmej Singh 2002 (3) Pun LR 329. However, I find no force in this submission of the learned counsel for the plaintiff respondent. In the reported case the Regular Second Appeal was of the year 1982 which was decided by this Court on 16-8-2002. Reliance was placed on Sohan Singh v,. Gurmej Singh 2002 (3) Pun LR 329. However, I find no force in this submission of the learned counsel for the plaintiff respondent. In the reported case the Regular Second Appeal was of the year 1982 which was decided by this Court on 16-8-2002. This Court after considering the application for additional evidence, which was moved before the lower appellate Court, found that there was no merit in the application filed by the plaintiffs appellants for leading additional evidence and that no prejudice was caused to them by not deciding their application for additional evidence by the first appellate Court. Furthermore, while declining to remand the case it was observed that remanding a case for re-trial is a serious matter and such order can be passed in exceptional circumstances where there had been no real trial or complete and effective adjudication of the matter and that remand is not meant for providing fresh opportunity to a party. However, in the present case the position is entirely different. The defendant appellant is not seeking remand of the case for re-trial. On the other hand, the case has to be sent to the lower appellate Court for deciding the appeal afresh in accordance with law and while deciding the appeal the lower appellate Court is required to decide the application for additional evidence moved by the defendant appellant. So far as the merits of the application for additional evidence are concerned, in my opinion, it would not be appropriate for this Court to make any observation in this regard at this stage and it would be for the lower appellate Court to decide the application for additional evidence in accordance with law. 9. For the reasons recorded above, present appeal is allowed, judgment and decree dated 5-2-2002, passed by the Additional District Judge are set aside and the case is remanded back to the learned Additional District Judge for deciding the appeal afresh in accordance with law. It is made clear that before deciding the appeal, the lower appellate Court shall also consider and decide the application for additional evidence, moved by the defendant appellant, in accordance with law. 10. Parties through their counsel are directed to appear before the Additional District Judge on 21-3-2005 for further proceedings in accordance with law. 11. It is made clear that before deciding the appeal, the lower appellate Court shall also consider and decide the application for additional evidence, moved by the defendant appellant, in accordance with law. 10. Parties through their counsel are directed to appear before the Additional District Judge on 21-3-2005 for further proceedings in accordance with law. 11. Lower Court record be sent back forthwith along with a copy of this order for strict compliance.