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Rajasthan High Court · body

2019 DIGILAW 1521 (RAJ)

Jitendra Bhandari v. Hiralal Bhansali

2019-05-15

PRAKASH GUPTA

body2019
JUDGMENT Prakash Gupta, J. - Instant second appeal has been preferred against the judgment and decree dated 19.11.2010 passed by Additional District Judge No. 5, Kota (hereinafter referred to as the "Appellate Court") in Civil Regular Appeal No.89/2003 whereby the "Appellate Court" dismissed the appeal and confirmed the judgment and decree dated 31.10.2003 passed by Civil Judge (J.D.) No.3, North, Kota (hereinafter referred to as the "trial Court") in Civil Suit No.506/1991. 2. Brief Facts giving rise to the present appeal are that the respondent-plaintiff filed a suit against the appellant-defendant seeking permanent injunction. The suit of the plaintiff was decreed by the "trial Court" vide judgment and decree dated 31.10.2003. 3. Being aggrieved by the same, the appellant preferred an appeal before the "Appellate Court" which also came to be dismissed vide judgment and decree dated 19.11.2010. The appellant therefore, has filed the present second appeal. 4. It is submitted by learned senior counsel Shri Kamlakar Sharma appearing for the appellant that an application under Order 41 Rule 27 CPC was filed before the "Appellate Court" but the said application has not been decided by the "Appellate Court". Therefore, only on this ground, the judgment and decree of the "Appellate Court" is liable to be set aside and the matter should be remanded to the "Appellate Court". 5. On the other hand, learned counsel for the respondent Shri Harsh Sharma fairly admits that the application filed by the appellant under Order 41 Rule 27 CPC before the "Appellate Court" has not been disposed of by the "Appellate Court". Therefore, he has no objection in remanding the matter to the "Appellate Court" for a decision afresh. 6. Heard learned counsel for the parties and perused the material available on record. 7. Having regard to the submissions made by learned counsel for the parties, I am satisfied that in this appeal following substantial question of law is involved: "Whether the appellate court was right in not deciding the application filed by the appellant under Order 41 Rule 27 CPC?" 8. Indisputable, an application under Order 41 Rule 27 CPC was filed by the appellant before the "Appellate Court" but the same has not been decided by the "Appellate Court". In Hakam Singh & Anr. Vs. Indisputable, an application under Order 41 Rule 27 CPC was filed by the appellant before the "Appellate Court" but the same has not been decided by the "Appellate Court". In Hakam Singh & Anr. Vs. State of Haryana & Ors., (2008) AIR SC 2990 , Hon'ble Apex Court has observed as under:- "That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the case to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE". In Jatinder Singh and Another Vs. Mehar Singh and Others, (2009) 17 SCC 465 Hon'ble Apex Court in para No.4 has observed as under:- "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." 9. In the light of aforesaid, the judgment and decree dated 19.11.2010 passed by the Additional District Judge No.5, Kota liable to be set aside and the matter is liable to be remitted back to the "Appellate Court" for a decision afresh. Substantial question of law is decided accordingly. 10. Resultantly, the appeal is allowed and judgment and decree dated 19.11.2010 is set aside and the matter is remitted back to the "Appellate Court" to decide it afresh on merits along with the application under Order 41 Rule 27 C.P.C. in accordance with law. The parties are directed to remain present before the "Appellate Court" on 08.07.2019. 10. Resultantly, the appeal is allowed and judgment and decree dated 19.11.2010 is set aside and the matter is remitted back to the "Appellate Court" to decide it afresh on merits along with the application under Order 41 Rule 27 C.P.C. in accordance with law. The parties are directed to remain present before the "Appellate Court" on 08.07.2019. The "Appellate Court" is directed to decide the appeal expeditiously but not later than three months from the date of this judgment/order. Record be sent back to the "Appellate Court" forthwith.