Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1286 (MP)

Francis D' Souza v. Rajni

2011-11-14

A.K.SHRIVASTAVA

body2011
JUDGMENT : 1. This appeal has been filed at the instance of defendant under Order 43 Rule 1 (u), CPC. 2. The plaintiff-respondents filed a suit for eviction on the relationship of landlord and tenant against the appellant. The Said suit was resisted by appellant by filing written statement. 3. The learned Trial Court after framing the issues and recording the evidence of the parties dismissed the suit. 4. The first appeal which was filed by the respondents before learned First Appellate Court has been allowed by the impugned order and the case has been remanded to the learned Trial Court to decide the suit afresh. In the first appeal, an application under Order 41 Rule 27, CPC was filed by the respondents who were appellants in that Court and accordingly the learned First Appellate Court allowed that application and remanded the case to learned Trial Court. 5. In this manner this misc. appeal has been filed by the defendant. 6. By placing reliance on the decisions of the Supreme Court The Municipal Corporation of Greater Bombay Vs. Lala Pancham and others, AIR 1965 SC 1008 , State of Gujarat and another Vs. Mahendra Kumar Parshottambhai Demi (D) by LRs., AIR 2006 C 1864 and State of U.P. Vs. Manbodhan Lal Shrivastava, AIR 1957 SC 912 , it has been submitted by learned Counsel for the appellant that the respondents/plaintiffs should not be permitted to fill up the lacuna in the case and therefore, the application under Order 41 Rule 27, CPC which was filed by them ought to have been dismissed and by not dismissing the same, learned 'First Appellate Court had erred in law. Learned Counsel further submits that in the plaint there is no averment of plaintiff that any mutation proceedings are going on and therefore, the application under Order 41 Rule 27, CPC filed by the plaintiffs in the first appeal should have been rejected. Learned Counsel has also placed reliance on the decisions of this Court in Shyamsingh Wajod Vs. Nandlal Gendalal, 2005 (1) MPACJ 37, Yashoda Devi and another Vs. Kanhaiyalal, 2010 (4) M.P.H.T. 487 = 2010 (4) MPIJ 494, Reg. Vidhichand Dharamshala Trust, Gwalior Vs. Shyam Singh, 2010 (3) MPIJ 428 and State of M.P. and others Vs. Abbas AH, 2007(1) M.P.H.T. 231 . Nandlal Gendalal, 2005 (1) MPACJ 37, Yashoda Devi and another Vs. Kanhaiyalal, 2010 (4) M.P.H.T. 487 = 2010 (4) MPIJ 494, Reg. Vidhichand Dharamshala Trust, Gwalior Vs. Shyam Singh, 2010 (3) MPIJ 428 and State of M.P. and others Vs. Abbas AH, 2007(1) M.P.H.T. 231 . Learned Counsel submits that the averments made in the application under Order 41 Rule 27, CPC are not within the purview of the said provision and therefore, learned First Appellate Court erred in law in allowing the same. 7. Percontra, Ku. Rao, learned Counsel for the plaintiffs/respondents argued in support of the impugned order and submitted that cogent reasons have been assigned in the impugned order by learned First Appellate Court allowing the application of plaintiffs under Order 41 Rule 27, CPC and thereby remanding the case to learned Trial Court by setting aside the judgment and decree passed by that Court and therefore, this appeal be dismissed. 8. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. 9. On bare perusal of the impugned order passed by learned First Appellate Court particular Paragraph 28, this Court finds that the documents which were filed along with the application under Order 41 Rule 27, CPC were not in the knowledge of the plaintiffs and therefore, the case of the plaintiffs comes within the ambit and sphere of Order 41 Rule 27 (1) (aa), CPC. 10. I have gone through the reasons assigned by learned First Appellate Court allowing the application under Order 41 Rule 27, CPC and I find them to be quite cogent as the same are based on correct application of law. The decisions which have been place reliance by learned Counsel for the appellant are distinguishable because they pertains to filling up of lacuna or that the application was not coming within the purview of Order 41 Rule 27, CPC. 11. Since there is a clear finding of learned First Appellate Court holding that documents which plaintiffs submitted were not in his knowledge and they were obtained on the basis of the Right to Information Act, according to me, learned First Appellate Court did not err in law in allowing the application and thereby sending the case to learned Trial Court to pass a fresh decision. 12. 12. There is no merit in the appeal, the same is hereby dismissed with no order as to costs.