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2017 DIGILAW 1203 (MP)

Jyoti v. Jainarayan

2017-11-23

VIVEK RUSIA

body2017
ORDER 1. The petitioner has filed present writ petition being aggrieved by the order dated 18.9.2017 passed by the Additional District Judge, Neemuch, by which, three applications filed by her have been rejected. 2. The facts of the case are as under :- Jainarayan and Gopal are real brothers and their father Thanmal died in the year 1970. The dispute arose in respect of the plot No. 44, Jawahar Nagar, Neemuch. Then Jainarayan filed the suit against Gopal seeking declaration that he be declared owner of the property and the defendant be directed to have over the possession. Vide judgment and decree dated 14.3.2016, the suit has been decreed in favour of the Jainarayan and the defendant Gopal was directed to give vacant possession and also directed to pay mesne profit @ Rs.500/- per months. 3. Being aggrieved by the aforesaid judgment and decree, legal heirs of the defendant Gopal filed first appeal before the District Judge, Neemuch. In the said appeal, the present petitioner who is also one of the legal heir of defendant Gopal has been arrayed as respondent. During pendency of the said appeal, the present petitioner filed an application under Order 41 rule 1 of CPC, 94(e), Order 14 rule 2 of CPC read with the application under Order 7 rule 11 of CPC. She has also filed another application under Order 1 rule 8 of CPC for her transposition from respondent to appellant. She has also filed another application under Order 41 rule 27 of CPC for seeking permission to file certain additional evidence on record. Learned appellate Court vide order dated 18.9.2017 has rejected the application under Order 7 rule 11 and directed that the remaining applications would be decided at the time of final hearing, hence the present petition before this Court. 4. At the very outset, Shri V.K. Jain, learned senior counsel appearing for respondent No. 1 submits that he is having no objection if the application under Order 1 rule 8 of CPC is allowed and the present petitioner may be transposed as appellant. Accordingly, the application under Order 1 rule 8 of CPC is allowed. The appellate Court is directed to permit the present petitioner to become appellant No. 5 in the appeal. 5. Accordingly, the application under Order 1 rule 8 of CPC is allowed. The appellate Court is directed to permit the present petitioner to become appellant No. 5 in the appeal. 5. The petitioner is also aggrieved by the impugned order by which the trial Court has directed that the application under Order 41 rule 27 of CPC would be decided at the time of final argument. Contention of the learned counsel for the petitioner is that learned appellate Court first ought to have decide the application under Order 41 rule 27 of CPC before final argument. If the petitioner is required to give any additional evidence oral or documentary, she will get full opportunity. In support of his contention, he has placed reliance upon the judgment delivered in the case of Union of India v. K. V. Lakshman and others, reported in 2016(6) SC 138. 6. In reply, Shri V.K. Jain, learned senior counsel for the appellant submits that all the pending applications are liable to be decided at the time of final hearing of the appeal and if the Court find that the additional evidence are required to be taken on record, then the Court may proceed further under Order 41 rules 28 and 29 of CPC and if the Court found that if the applications are liable to be rejected, then the Court may reject the application and proceed further to decide the appeal finally. At the time of final hearing, the Court may consider the application whether it is liable to be allowed or not ?. Therefore, the appellate Court has not committed any error of law while passing the impugned order. In support of his contention, he has placed reliance over the judgment delivered in the case of Union of India v. Ibrahim Uddin and another, reported in (2012)8 SCC 148 , and Eastern Equipment and sales limited v. Ing, Yash Kumar Khanna, reported in (2008)12 SCC 739 and (2009)2 SCC 654 , reported in Muzaffar Ali v. Dasaram. 7. In the case of Union of India v. K.V. Lakshman and others (supra), the first appeal was filed before the High Court in which the appellant filed an application under Order 41 rule 27 of CPC and sought permission to adduce additional evidence in support of his case. 7. In the case of Union of India v. K.V. Lakshman and others (supra), the first appeal was filed before the High Court in which the appellant filed an application under Order 41 rule 27 of CPC and sought permission to adduce additional evidence in support of his case. Learned Single Judge has dismissed the appeal in limine and upheld the judgment and decree of the trial Court. Learned Single Judge has also dismissed the application filed by appellant under Order 41 rule 27 of the CPC, hence, the SLP was filed before the apex Court. The apex Court has set aside the judgment passed by the High Court and remanded the case to decide afresh. Instead of remanding the case to the High Court, looking to the facts and circumstances of the case, the apex Court has remanded the suit to civil Court with the finding that the High Court ought to have allowed the application filed under Order 41 rule 27 of CPC, therefore, in this case also, appeal as well as the application under Order 41 rule 27 of the CPC were decided simultaneously. 8. In the case of Eastern Equipment and Sales Limited (supra), the SLP was filed against the order allowing the application under Order 41 rule 27 of CPC independently, therefore, the apex Court has set aside the order of the High Court remanding the case to the High Court to decide the first appeal along with the application under Order 41 rule 27 of CPC. 9. In the case of Muzaffar Ali v. Dasaram (supra), the Supreme Court has remanded the case with the direction to the High Court to decide the appeal as well as the application under Order 41 rule 17 of CPC together on merit, therefore, in the present case, learned trial Court has not committed any error while passing the order that the application under Order 41 rule 27 of CPC would be decided along with the first appeal. In view of the aforesaid, present petition is partly allowed.