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2006 DIGILAW 300 (JHR)

UMAKANT YADAV v. RAMESH KUMAR BAJAJ

2006-03-30

M.Y.EQBAL

body2006
Judgment : ( 1 ) HEARD the parties. ( 2 ) IN this writ petition under Article 227 of the Constitution of India the petitioner, who is defendant-appellant in the Court-below has prayed for quashing the order dated 16-9-2005 passed by learned 5th Additional district Judge, Godda in Title Appeal (Eviction) No. 1/05 whereby he has rejected the petition filed by the petitioner under Order 41, Rule 27 (aa) (b) of the Code of Civil Procedure. ( 3 ) PLAINTIFF-RESPONDENTS filed a suit for eviction being Title Suit (Eviction) No. 5/ 2001 and the said eviction suit was decreed. Petitioner then preferred Title Appeal being title Appeal (Eviction) No. 10/05. Defence taken by the defendant-petitioner in the suit was that he is not a tenant rather he is the owner of the suit premises on the strength of an agreement to sell executed by the original land holder on receiving part of the consideration money. Defendants further case is that the landlady now deceased also received balance consideration amount and had granted a receipt. Petitioner, therefore, filed application under Order 41, Rule 27 (aa) (b) of the Code of Civil Procedure for adducing additional evidence of receipt granted by the landlady, namely, Late Most. Shanti Bajaj on 25-4-1999. The said application was opposed by the respondents by filing rejoinder. Learned Court-below after considering the entire facts of the case held that admittedly no sale-deed was executed in favour of the defendant-petitioner and there is no satisfactory evidence. Court-below further held that the evidence sought to be adduced is not necessary for pronouncement of judgment. Court-below, therefore, rejected the application. ( 4 ) AFTER hearing learned counsel appearing for the parties, I do not find any illegality or infirmity in the impugned order. Notwithstanding the rejection of the application, petitioner would be at liberty to challenge the said order in any Second Appeal, if the appeal in the Court-below goes against him, ( 5 ) IN the case of Jugal Mishra v. Mahabir sao, 2004 (4) JLJR 468 : (2004 AIR Jhar hcr 2122) learned single Judge of this court (Honble P. K. Balasubramanyan, C. J. , as he then was) observed as under: "2. Impugning the decision of the Lower appellate Court, learned counsel for the petitioner, relied on the decision of the Supreme court in State of Rajasthan v. T. N. Sahani, (2001) 10 SCC 619 , and contended that the Lower Appellate Court should have considered application under Order XLI, rule 27, CPC only alongwith the appeal when the appeal was taken up for final disposal and not before. As I understand the decision of the Supreme Court, it only indicates that it would be proper for a Court, called upon to admit evidence under Order xli, Rule 27 of the Code, to consider the application when the appeal itself was being considered, since it would be in a better position to appreciate the question whether the document should be admitted in evidence or not. But that is not an authority for the proposition that the First Appellate court lacks jurisdiction to independently deal with an application under Order XLI, rule 27 of the Code of Civil Procedure, when it is made. Therefore, in my view, nothing turns on the argument that the order should be set aside and the application directed to be considered alongwith the appeal. For the purposes of this motion, I do not think that it is necessary to go into the other aspects, because in my view, the petitioner has ah efficacious alternate remedy. In that, he can challenge the order now passed by the Lower appellate Court, in any second appeal, he may by forced to file in case the appeal in the Lower Appellate Court goes against him. This is clear from Section 105 (1) of the Code of Civil Procedure, which enables the setting up as a ground of objection a challenge to the order in any memorandum of appeal that may be filed against the decree. Since, such an avenue is open and since the order of the Lower Appellate Court cannot be said to be one, beyond its jurisdiction. I do not think that it is appropriate to exercise my supervisory jurisdiction under Article 227 of the Constitution of India at this stage. " ( 6 ) IN the background of the aforesaid facts, I do not find any reason to interfere with the impugned order. This writ petition is accordingly dismissed. Petition dismissed. --- *** --- .