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2010 DIGILAW 1084 (RAJ)

L. Rs. of Teja Singh v. Board of Revenue

2010-05-27

A.M.SAPRE

body2010
JUDGMENT Hon'ble SAPRE, J.—By filing this writ petition under Article 227 of the Constitution of India, the writ petitioner seeks to challenge the appellate order dated 8.3.2010 passed in vihy@lhfyax@2037@2000@xaxkuxj (Annex. 11) which in turn arises out of an order passed by the Collector in its appellate jurisdiction on 31.5.2000. 2. By the impugned order, the learned Member of the Board of Revenue was ceased to dismiss the appeal filed by the writ petitioner. 3. The only submission of learned counsel for the petitioner was that the writ petitioner (appellant before the Board of Revenue) had filed an application in the said appeal under Order 41 Rule 27 on 22.2.2010 (Annex. P.9), whereby he wanted to file some additional documentary evidence in support of his contentions. According to learned counsel, this application was not taken note of, much less decided and in ignorance of this application and the documents filed in support of the application which are material, his appeal was dismissed causing prejudice to the rights of the writ petitioners (appellants). It is contended that it was the duty of the appellate authority to have entertained the application made by appellant under Order 41 Rule 27 ibid and the same should have been allowed by allowing the petitioners to file the additional documentary evidence for proper decision of the appeal. 4. Notice of this petition was issued to the State. They are now represented by Mr. Sandeep Bhandawat, learned counsel for the State. 5. Having heard the learned counsel for the parties and on perusal of the record of the case, in my view, the petitioner deserves to be allowed and while setting aside the impugned order, the matter deserves to be remanded to the Board of Revenue for deciding the matter afresh as indicated infra. 6. In my view, the learned Member of the Board of Revenue ought to have decided the application under Order 41 Rule 27 made by the petitioners (appellants) while deciding the appeal itself. Indeed, law on this point no longer remains res integra and stand decided by the judgment of Supreme Court on this issue [See 2009(1) WLC (SC) Civil 314 "Hakam Singh vs. State of Haryana & Ors."] 7. Whenever party to the appeal makes an application for adducing additional evidence in support of their case, then such application must be disposed of at the time of final hearing of the appeal. Whenever party to the appeal makes an application for adducing additional evidence in support of their case, then such application must be disposed of at the time of final hearing of the appeal. Naturally, if the application is allowed, then other side is required to be given an opportunity to file any documents in rebuttal. The appeal is then required to be heard after taking into account the additional evidence adduced by the parties in the appeal. In this case, unfortunately, though the appellants of the appeal No. vihy@lhfyax@2037@2000@xaxkuxj filed an application seeking to adduce additional evidence in support of his appeal, the same ought to have been taken note of by the appellate authority with a view to find out, whether documents sought to be filed by the appellant were relevant or not. If found relevant, then they should have been allowed to be taken on record for deciding the appeal on merits. 8. Since in this case, learned Appellate Judge decided the appeal without passing any orders on the application made by the appellants for filing documents and, therefore, such order is not legally and factually sustainable. It is liable to be set aside. 9. In view of the aforesaid discussion, the writ petition succeeds and is hereby allowed. Impugned order is set aside and case i.e. Appeal No. vihy@lhfyax @2037@2000@xaxkuxj is remanded to the Board of Revenue for its fresh decision in accordance with law. I however make it clear that the application made by the petitioners under Order 41 Rule 27 dated 1.1.2010 is also allowed because in my view, the documents sought to be filed by the appellants are relevant for disposal of the appeal filed by the appellants. The learned Member of the Board of Revenue shall now decide the appeal after taking into account the entire evidence already on record including the evidence filed additionally along with the application under Order 41 Rule 27 and then decide the appeal on merits in accordance with law. 10. The writ petitioners (appellants) shall appear before the Board of Revenue on 12.7.2010 and produce the certified copy of this order. The appeal shall then be decided by the Board of Revenue within a period of three months from the date of parties appearance.