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2006 DIGILAW 250 (SC)

Sanjiv Goel v. Avtar S. Sandhu

2006-03-02

ARUN KUMAR, R.V.RAVEENDRAN

body2006
JUDGMENT : Arun Kumar, J. The respondent (Avtar S. Sandhu) had filed a suit on 01.12.1989 for Dissolution of a partnership firm known as M/s Bharat Engineering Works, N.G. Road, Jalandhar, Punjab. In the said suit, a preliminary decree was passed by the trial court on 21.05.1993 dissolving the said partnership firm with effect from 22.12.1989 holding that Sanjiv Goel (the appellant here in) will have to render accounts of the firm from 01.05.1989 when the business of the firm had started. A local Commissioner had been appointed to go in to the accounts. Against this preliminary decree passed by the trial court, the appellant filed an appeal before the Addl. District Judge, Jalandhar. During the pendency of the appeal, the appellant in the appeal, i.e. Sanjiv Goel, filed an application under Order 41 Rule 27 of the Civil Procedure Code for permission of the Court to adduce further evidence in the case. The respondent filed are ply to the said application opposing the same. 2. However, it is the case of the appellant herein that the appeal pending before the Addl. District Judge, Jalandhar was disposed of without any order being passed on the application of the appellant under Order 41 Rule 27 of the CPC. This fact that no order was passed on the said application by the said court while disposing of the appeal is not disputed by the learned counsel appearing for the respondent-plaintiff. The appeal was dismissed by the Addl. District Judge vide his judgment dated 22.07.1997. The second appeal was filed against the judgment of the learned Addl. District Judge by the appellant. We have been taken through the grounds of appeal before the High Court in the second appeal and we find that the appellant had taken a ground before the High Court about his application under Order 41 Rule 27 having not been disposed of by the Addl. District Judge before passing the Final judgment in the appeal pending before him. In spite of a grievance having been made about the non-disposal of the application under Order 41 Rule 27, the High Court by its impugned judgment dated 13.11.1997 dismissed the appeal in limine without adverting to this aspect. There is no mention about the grievance of the appellant about his application under Order 41 Rule 27 having not been disposed of in the order of the High Court. There is no mention about the grievance of the appellant about his application under Order 41 Rule 27 having not been disposed of in the order of the High Court. In the present appeal, at the outset, the learned counsel for the appellant brought to our notice the fact that an application under Order 41 Rule 27 Civil Procedure Code filed by the appellant before the learned Addl. District Judge has remained pending Throughout as no orders were passed on the said application by the learned Add. District Judge or by the High Court. The learned counsel appearing For the respondent is unable to dispute this fact that the said application has not been disposed of so far. Without expressing any opinion on the merits of the claim of the appellant in his application under Order 41 Rule 27 Civil Procedure Code we are of the view that the said application ought to have been disposed of by the learned Add. District Judge before deciding the appeal which was pending before him. Non-disposal of the said application has led to the miscarriage of justice. Accordingly, we set aside the impugned judgment of the High Court as well as the judgment dated 22.07.1997 of the learned Add. District Judge, Jalandhar and remand the matter back to the District Judge, Jalandhar for assigning the case to an appropriate court for decision of the appeal as well as the application of the appellant under Order 41 Rule 27 Civil Procedure Code on merits in accordance with law. This appeal is disposed of accordingly. 3. The parties to bear their own costs.