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2017 DIGILAW 214 (RAJ)

Ashok Kumar Khatik v. Nagar Panshad

2017-01-17

VEERENDR SINGH SIRADHANA

body2017
JUDGMENT Veerendr Singh Siradhana, J. - The instant second appeal projects a challenge to the judgment and decree dated 31st May, 2006, made by the Additional Civil Judge (Junior Division) No.1, Sikar, in suit proceedings instituted by the plaintiff/appellant registered as Suit No.89 of 2003, (Ashok Kumar vs. Nagar Parishad & Anr.), confirmed vide judgment and decree dated 15th September, 2008, made by the Additional District Judge No.1, Sikar, in Civil Regular Appeal No.50 of 2006 (31/2008). 2. Briefly, the essential skeletal material facts are that the plaintiff/appellant instituted the suit proceedings for damages and permanent injunction against the non-appellants with a further prayer to restrain the non-appellants from interfering in the possession of the plaintiffs'' property involved herein. The trial Court, in the backdrop of the pleadings of the parties and evidence adduced, made the impugned judgment and decree dated 31st May, 2006, which was upheld by the First Appellate Court vide judgment and decree dated 15th September, 2008. 3. Learned counsel for the appellant, Mr. Dhand, reiterating the pleaded facts and grounds of the memo of the appeal, asserted that the important question of law, which arises in this appeal, for consideration of this Court is: 4. Whether the Appellate Court can dismiss and decide the appeal without adjudication upon the application and the documents annexed by the appellant under Order 41, Rule 27 CPC? 5. In order to substantiate his stand, learned counsel has relied upon the opinion of the Supreme Court in the case of Jatinder Singh & Anr. vs. Mehar Singh & Ors., (2009) 17 SCC 465 ; North Estern Railway Administration, Gorakhpur vs. Bhagwan Das (Dead) by Lrs., (2008) 8 SCC 511 , and opinion of the Coordinate Bench of this court in the case of Hindustan Petroleum Corporation Ltd. vs. Smt. Sudesh Kohali & Ors., 2013 (5) WLC (Raj.) 413 . 6. Pending proceedings on the above-noted civil second appeal; two interim applications (interim application number 794 of 2015 and 17501 of 2015), have been instituted. A glance of the interim application number 794 of 2015, which is a site inspection report carried out in compliance of the order made by this Court along with photographs, has been placed on record. The application is supported by an affidavit of the then Commissioner, Nagar Parishad, Sikar, from where the details as to the width of the road have been indicated as 16 (sixteen) feet. The application is supported by an affidavit of the then Commissioner, Nagar Parishad, Sikar, from where the details as to the width of the road have been indicated as 16 (sixteen) feet. In another application (interim application number 17501 of 2015), the appellant has made a prayer for disposal of the appeal in the light of the inspection report submitted by the non-appellants vide interim application number 794 of 2015. 7. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record so also the judgments and decrees passed by the Courts below. 8. The factual matrix, as indicated in interim application (I.A. No.794 of 2015), is not in dispute. 9. The issue raised herein, is no more res-integra in view of the authoritative pronouncement by the Apex Court of the land in the case of Jatinder Singh & Anr. (supra), wherein the Supreme Court in no uncertain terms held that an application under Order 41, Rule 27 CPC for production of additional evidence cannot be kept pending and ought to have been considered and adjudicated upon and in such circumstances, the matter is required to be remitted. This opinion aforesaid has reiterated the earlier opinion in the case of North Eastern Railway Administration, Gorakhpur (supra). 10. Undeniably, the First Appellate court failed to decide the application under Order 41, Rule 27 of CPC as to whether additional evidence could be permitted to be admitted in the evidence or not. In view of the admitted position that the application under Order 41, Rule 27 of CPC remained undecided; the impugned judgment and decree made by the First Appellate Court dated 15th September, 2008, cannot be sustained and deserves to be set aside and the matter needs to be remitted back for decision afresh in the first appeal along with application under Order 41, Rule 27 CPC in the backdrop of the law declared by the Supreme Court in the case of Jatinder Singh & Anr. (supra), holding thus: "4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41, Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. (supra), holding thus: "4. While deciding the second appeal, however, the High Court had failed to take notice of the application under Order 41, Rule 27 of the Code of Civil Procedure and decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41, Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law." 11. For the reasons and discussions aforesaid as well as opinions referred to hereinabove; the matter needs to be remitted for the purpose of adjudication on the application under Order 41, Rule 21 CPC and appeal afresh to the First Appellate Court. 12. Accordingly, the above-noted civil second appeal succeeds and is hereby allowed. The impugned judgment and decree made by the First Appellate Court dated 15th September, 2008, is hereby set aside and the matter is remitted back for decision afresh. The appeal is thus, allowed to the extent as indicated hereinabove. The appeal before the First Appellate court is restored to its original number. It is made clear that this Court has not gone into the merits of the application under Order 41, Rule 27 of CPC, which is required to be adjudicated upon by the First Appellate court in accordance with law. The above-noted second appeal has been considered only on the limited question of law as extracted hereinabove. The First Appellate Court is required to decide the appeal as expeditiously as possible preferably within six months from the date a certified copy of this order is presented. Stay application also stands closed.