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Madhya Pradesh High Court · body

2012 DIGILAW 118 (MP)

Premchand v. Rampatibai

2012-01-27

N.K.MODY

body2012
JUDGMENT 1. The appeal was admitted by this Court vide order dated 30/01/2009 for final hearing on the following substantial questions of law :- (1) “Whether the lower appellate Court has erred in rejecting the application filed by the appellant under Order XLI r.27 CPC without considering the merits of the application and the documents filed along with the application?” 2. Being aggrieved by the judgment and decree dated 11/04/2008 passed by 10th Additional District Judge, Indore in Civil Appeal No.86/2007 whereby the judgment and decree dated 29.9.2007 passed by 4th Civil Judge, Class-I, Indore in Civil Suit No.39-A/2007 whereby the suit filed by the appellant for declaration and permanent injunction was dismissed, was maintained, present appeal has been filed. 3. Short facts of the case are that the appellant filed a suit for declaration and permanent injunction on 4/01/2003, wherein it was alleged that in a Housing Scheme of Mahawarnagar, Co-operative Housing Society, the land bearing survey No.326/02 situated at Dashahara Maindan, Indore, on which house of the appellant was coming, therefore, in exchange plot No.85 was allotted to the appellant by the Housing Co-operative Society in the year 1976. It was alleged that in that regard a certificate was issued in favour of the appellant on 24/12/1976. It was alleged that the appellant constructed a house on the said plot in the year 1977. It was alleged that the appellant entered into an agreement to sell the suit house and also published notice in a newspaper. It was alleged that appellant is in occupation of the suit house through its tenant. It was prayed that it be declared that appellant is in occupation of the suit property and the respondent be restrained to interfere into possession of the appellant. The suit was contested by the respondent alleging that the suit plot was never allotted to the respondent. It was alleged that after construction, the respondent has inducted the tenant in the suit house and the respondent is in occupation of the same. It was prayed that the suit filed by the appellant be dismissed. After framing of issues and recording of evidence, learned trial Court dismissed the suit,against which an appeal was filed by the appellant which was also dismissed, hence, the present appeal. 4. It was prayed that the suit filed by the appellant be dismissed. After framing of issues and recording of evidence, learned trial Court dismissed the suit,against which an appeal was filed by the appellant which was also dismissed, hence, the present appeal. 4. Learned counsel for the appellant argued at length and submits that the impugned judgment passed by the learned appellate Court is illegal, incorrect and deserves to be set aside. It is submitted that during pendency of the appeal, appellant filed an application under Order XLI Rule 27 CPC along with certain documents but the learned appellate Court without looking into the application dismissed the appeal on merits. Learned counsel submits that it is settled law that in a appeal whenever the application is filed for taking documents on record then the same has to be taken into consideration along with the appeal. It is submitted that the appeal is decided without taking into consideration the application, therefore, the impugned judgment passed by the learned appellate Court is bad in law. It is submitted that appeal filed by the appellant be allowed and the impugned judgment be set aside. Learned counsel placed reliance on a decision in the matter of North Eastern Railway Administration v/s Bhagwan Das [2008 AIR SCW 3159]wherein High Court dismissed the appeal without considering the application, Hon’ble Apex Court held that the same is improper. It is submitted that appeal filed by the appellant be allowed and the judgment passed by learned appellate Court be set aside and the case be remanded with a direction to decide the appeal after taking into consideration the application filed by the appellant. 5. Learned counsel for the respondent submits that no illegality has been committed by the learned appellate Court in dismissing the appeal. It is submitted that appeal filed by the appellant be dismissed. 6. From perusal of the record, it appears that against the judgement and decree passed by the learned trial Court, an appeal was filed by the appellant and in that appeal the application was filed by the appellant on 12/03/2008 along with certain document. This application finds place in the judgment whereby an application was dismissed. 6. From perusal of the record, it appears that against the judgement and decree passed by the learned trial Court, an appeal was filed by the appellant and in that appeal the application was filed by the appellant on 12/03/2008 along with certain document. This application finds place in the judgment whereby an application was dismissed. However, since number of documents were filed by the appellant along with the application, which was supported by an affidavit of the appellant, therefore,it was the duty of the appellate Court to decide the application on merits. Since in the judgment there is a simple reference of the application which was dismissed by the impugned judgment, therefore, this Court is of the view that learned appellate Court committed error in dismissing the application filed by the appellant without considering the merits of the application and the documents filed along with the application. In view of this, appeal filed by the appellant is allowed and the impugned judgment of the appellate Court is set aside and the case is remanded to the learned appellate Court with a direction to decide the application on merits filed under Order XLI Rule 27 CPC while deciding the appeal. 7. With the aforesaid, the appeal stands disposed of.