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2017 DIGILAW 1467 (RAJ)

DHUDHA v. MADAN LAL

2017-07-04

GOVERDHAN BARDHAR

body2017
JUDGMENT : Goverdhan Bardhar, J. This Misc. Appeal has been filed against the order dated 18.12.2014, passed by District Judge No. 2, Alwar, whereby application filed by the plaintiff/respondents under Order 41, Rule 27 CPC, has been allowed and the order of the learned Court below has been set aside. 2. Learned counsel for the appellants has argued that without resorting to provision under Order 41, Rule 27 CPC, for addressing on its merit, the appellate court remanded the matter to the trial court for reconsideration of suit afresh on merits which is without jurisdiction. The appellate court, subsequent to the taking of additional evidence under Order 41, Rule 27/28 CPC on record, can exercise its power to remand the matter to the trial Court either by way of limited or general remand as may be warranted in the facts of the case. He has further argued that without adverting to the merits of the appeal, the judgment and decree of the trial Court passed on the appreciation of the evidence could not have been set aside. Reliance has been placed on the judgment of Kiran Kumari and Ors. v. Hanumant Singh and Ors., in S.B. Civil Misc. Appeal No. 2230/2010, decided on 3.2.2014. 3. On the other hand, learned counsel for the respondents has argued that the order of the appellate Court does not cause any prejudice to the appellants. He has further argued that the appellate court has remanded the matter to be considered afresh by the trial Court after allowing the application under Order 41 Rules 27 CPC and the appellate court has rightly exercised its power. 4. Heard learned counsel for the parties and perused the impugned order. 5. He has further argued that the appellate court has remanded the matter to be considered afresh by the trial Court after allowing the application under Order 41 Rules 27 CPC and the appellate court has rightly exercised its power. 4. Heard learned counsel for the parties and perused the impugned order. 5. The appellate court while allowing the application under Order 41, Rule 27 of CPC vide order dated 18.12.2014, held as under: ^^vr% vihykFkhZ&oknhx.k dh vkSj ls izLrqr mDr rhuksa izkFkZuk&i= vUrxZr vkns'k 41 fu;e 27 lh0ih0lh0 2]000 :i;s gtsZ ij Lohdkj fd;s tkdj izLrqr nLrkostkr dh lhek rd izR;FkhZ&izfroknhx.k dks fjcVy dk volj iznku djrs gq, vfHkys[k ij fy;s tkus dh vuqKk iznku dh tkrh gS rFkk fo}ku v/khuLFk U;k;ky; }kjk ikfjr vkykSP; fu.kZ; o fMdzh fnuakd 15-11-2002 dks vikLr fd;k tkdj ekeyk v/khuLFk U;k;ky; dks bl funsZ'k ds lkFk izfrizsf"kr fd;k tkrk gS fd os nksuksa i{kksa dh vkSj ls izLrqr nLrkostkur dh lhek rd lk{; ysdj fof/k vuqlkj u;s fljs ls iqu% fu.kZ; ikfjr djsaA^^ 6. In the case of Kiran Kumari (supra),it has been observed in para No. 7, which reads as under: "The provisions of Order 41, Rule 27 read with Order 41, Rule 28 CPC make it quite clear that on the mere allowing of an application under Order 41, Rule 27 CPC, the appellate court is not empowered to set aside the judgment and decree of the trial court. That can only be done by the appellate court on merits of the appeal on finding palpable error, unsoundness and error of law by the trial court. On an application under Order 41, Rule 27 read with Order 41, Rule 28 thereof the appellate court can either take additional evidence on record on its own or direct the courts whose decree the appeal is preferred against or any other subordinate court to take the additional evidence on record and send it back to the appellate court thereafter. There is no doubt that in the event of the appellate court proceeding to address the merits of appeal subsequent to the taking of additional evidence under Order 41, Rule 27/28 CPC on record it can exercise its power to remand the matter to the trial court either by way of a limited or general remand as may be warranted in the facts of a case. Such a situation however does not obtain in the present case where the judgment and decree of the trial court passed on 1.9.1990 has been set aside by the appellate court and the matter was remanded only on the ground of the application under Order 41, Rule 27 CPC being allowed. To my mind the facts of the present case bring it within the ambit of the Judgment of the Hon'ble Supreme Court in the case of Amar Chand v. Bhanwar Lal (supra) on all fours. The Judgment of the Hon'ble Supreme Court in the case of Shyam Gopal Bindal and others v. Land Acquisition Officer & Another (supra) turned on its own facts and it appears from the reading thereof that the remand was made on the merits of the appeal before the Hon'ble Supreme Court. Such a situation does not appear in the present case." 7. In the case in hand, the learned Appellate Court albeit allowed the application under Order 41, Rule 27 of CPC and set aside the judgment and decree passed by the trial Court ignoring the provision under Order 41, Rule 27/28 CPC. The learned appellate Court is empowered to allow additional evidence of documents to be produced but not empowered to set aside the judgment and decree passed by the trial court. The provisions of Order 41, Rule 27 read with Order 41, Rule 28 CPC make it clear that in mere allowing application under Order 41, Rule 27 CPC, the appellate court is not empowered to set aside the judgment and decree of trial court. The judgment and decree of the trial court can only be set aside by the appellate court on merits of the appeal on finding palpable error, unsoundness and error of law. 8. In view of the above, the appeal is partly allowed and the order dated 18.12.2014, passed by District Judge No. 2, Alwar is set aside. The matter is remanded to the appellate court to pass an order afresh after affording opportunity of hearing to both the parties.