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2012 DIGILAW 2190 (RAJ)

Rajendra Kumar Dagadi v. Addl. Distt. Judge No. 2 Beawar Others

2012-11-06

ALOK SHARMA

body2012
JUDGMENT 1. - This petition has been filed ch allenging the order dated 31-7-2012 passed by the Additional Di strict Judge (Fast Track) No.2, Beawar in Regular Appeal No.51/2008 pending against the judgment and decree dated 27-4-2 005 passed by Civil Judge (Junior Division) Beawar, whereby the application under Order 41 Rule 27 read with 151 CPC filed by the petitioner- appellant (hereinafter `the appellant') for taking on re cord certified copies of revenue record and sale-deed has been dismissed. 2. At the outset the learned counsel for the appellant submitted that the impugned order is liable to be set aside in view of the fact that the appellate court has decided the application under Order 41 Rule 27 read with 151 CPC before final decision of the appeal. Counsel submits that the Hon'ble Supreme Court in case of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 has held that an application under Order 41 Rule 27 CPC is to be considered while deciding the appeal, in view of the fact that relevance of said application has to be considered in the context of evidence before the appellate court and the necessity found for resorting to the additional evidence sought to be brought on record under the provisions of under Order 41 Rule 27 CPC for a decision in the appeal. Counsel submits that in view of procedural irregularity by the appellate court in deciding the application under Order 41 Rule 27 read with 151 CPC before hearing of appeal, the impugned order is liable to be set aside. 3. Learned counsel for respondent - respondent plaintiff before the appellate court (hereinafter `the plaintiff') would submit that the application under Order 41 Rule 27 read with 151 CPC has been rightly dismissed by the appellate court. He submits that the said application was a mere an attempt to delay the disposal of appeal, which is pending before the appellate court since 2005. It is submitted that for the period 2005 to 2011, the said appeal was largely adjourned for reasons attributable to appellant. It is submitted that on 27-9-2011, the appellate court had granted a last opportunity to the appellant to argue the appeal. Thereupon the appellant moved an application under Order 6 Rule 17 CPC, which however was dismissed on 22-11-2011. It is submitted that for the period 2005 to 2011, the said appeal was largely adjourned for reasons attributable to appellant. It is submitted that on 27-9-2011, the appellate court had granted a last opportunity to the appellant to argue the appeal. Thereupon the appellant moved an application under Order 6 Rule 17 CPC, which however was dismissed on 22-11-2011. Thereafter on 25-2-2012 arguments were heard in part and the appellate court made it clear to appellant's counsel that arguments should definitely be completed by 13-3-20102. It was then that on 13-3-2012 instead of arguing the part heard appeal as directed by the appellate court on 25-2-2012, the appellant changed his counsel and an application under Order 41 Rule 27 CPC came to be moved, which application had been dismissed. He submits that it is thus apparent that salutary provisions of law i.e. Order 41 Rule 27 CPC for taking additional evidence on record during pendency of appeal was sought to be misused and the application was rightly dismissed by the appellate court. He submits that this court should not exercise its powers under Article 227 of the Constitution of India to come to the rescue of the petitioner by setting aside the order dated 31-7-2012, which is a just and fair order. 4. Heard learned counsel for the appellant as well as respondent and perused the material available on record of the writ petition. Perused the impugned order dated 31-7-2012 passed by the appellate court. 5. In my considered opinion the issue before this court is not so much on the merits of the order dated 31-7-2012, but as to the stage at which an application under Order 41 Rule 27 CPC ought to be decided by the appellate court. The judgment of the Hon'ble Supreme Court in case of Union of India v. Ibrahim Uddin (supra) to my mind categorically enunciates that an application under Order 41 Rule 27 CPC for bringing additional evidence on record at the stage of appeal was of necessity to be addressed only at the time of decision of appeal, when after appreciating the evidence on record the court reaches a conclusion as to the necessity of considering additional evidence in order to be able to pronounce the judgment on merits in the appeal. The judgment of the Hon'ble Supreme Court obviously is binding on this court under Article 141 of the Constitution of India and consequently there is no escape therefrom for the respondent. However this court would like to make it abundantly clear that the setting aside of the impugned order dated 31-7-2012 in view of procedural irregularity therein in deciding the application prior to disposal of appeal does not impinge on merits of the said decision of the appellate court. 6. Consequently, the impugned order dated 31-7-2012 passed by the appellate court is set aside and the appellate court is directed to decide the application under Order 41 Rule 27 CPC afresh along with the disposal of appeal itself. 7. It is however again made clear that the setting aside of the impugned order and remand of the matter to appellate court for decision of the application under Order 41 Rule 27 CPC afresh along with the appeal itself should not be construed as a view of this court on merits of the matter and the appellate court should not be influenced by the order of remand while deciding the application under Order 41 Rule 27 CPC. Th e application should be decided strictly in conformity within the scope of under Order 41 Rule 27 CPC as enunciated by the Hon'ble Supreme Court in case of Union of India v. Ibrahim Uddin (supra), more particularly in paragraphs 36-49, 52, 53 and 85.7. The appellate court is directed to decide the appeal and the application under Order 41 Rule 27 CPC within a period of three weeks from the date of presentation of certified copy of this order.The writ petition is disposed of accordingly.Petition disposed of. *******