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2021 DIGILAW 362 (RAJ)

Amin v. Kailash Chand

2021-02-12

GOVERDHAN BARDHAR

body2021
JUDGMENT 1. Challenge in the instant second appeal filed by the appellant plaintiff under Section 100 CPC has been made to the judgment and decree dated 23.05.2011 passed by the Court of Additional District Judge No.1, Sikar, District Sikar (Raj.) [for short 'the First Appellate Court'] in Civil Regular Appeal No. 77/2018 whereby the Additional District Judge No.1, Sikar while dismissing the appeal filed by the appellant plaintiff affirmed the judgment and decree dated 03.12.2005 passed by the Court of Additional Civil Judge (Jr. Division) No.2, Sikar [for short' the trial Court'] in Civil Suit No. 158/2003 by which suit filed by the plaintiff appellant for eviction of the defendant was dismissed. 2. The facts summarized in brief are that plaintiff filed a suit for eviction against the defendant mainly on the grounds of default in payment of rent, bonafide necessity, non-user of the shop in dispute by the defendant and also availability of alternative accommodation with the defendant. Written statement of denial was filed by the defendant. On the basis of pleadings of the parties, the trial Court framed eight issues and one another issue as l(a). The plaintiff in support of his case produced seven witnesses and got exhibited some documents. The defendant in support of his case produced four witnesses and got exhibited some documents. The trial Court vide its judgment and decree dated 03.12.2005 dismissed the suit filed by the plaintiff. The plaintiff aggrieved and dissatisfied with the judgment and decree dated 03.12.2005 passed by the trial Court preferred an appeal before the First Appellate Court which was dismissed vide judgment and decree dated 23.05.2011. 3. Learned counsel for the plaintiff/ appellant argued that both the courts below dismissed the suit for eviction filed by the plaintiff/appellant. The application under Order 41 Rule 27 CPC had remained undecided, the same has caused prejudice to the plaintiff/appellant and the non-disposal of the application led to miscarriage of justice. 4. In support of his submissions, learned counsel has placed reliance in a case of Hakam Singh v. State of Haryana & Ors., reported in 2009(1) WLC (SC) Civil 314. 5. 4. In support of his submissions, learned counsel has placed reliance in a case of Hakam Singh v. State of Haryana & Ors., reported in 2009(1) WLC (SC) Civil 314. 5. Learned counsel for the defendant/respondent-tenant has argued that the judgment- Hakam Singh (supra) cited by the counsel for the plaintiff/appellant, as noticed above, did not lay down as a rule that irrespective of nature of application under Order 41 Rule 27 CPC, in case such an application is not decided the matter has to be remanded to the first appellate court. 6. I have perused the impugned judgments and decrees passed by both the Courts below, scanned and scrutinized the entire material made available to the Court. 7. In the present case, the plaintiff/ appellant filed a suit for eviction against the defendant on the grounds of default of rent and bonafide necessity of his son, non-user of the shop in dispute by the defendant and the availability of the alternative accommodation with the defendant. The plaintiff/appellant moved an application under Order 41 Rule 27 CPC on 08.07.2008. Reply to the application was filed by the defendant on 03.10.2008. 8. Indisputably, both the courts below dismissed the suit for eviction filed by the plaintiff/appellant. The documents submitted by the plaintiff/appellant along-with the application under Order 41 Rule 27 CPC pertain to the premises in question. Thus, it cannot be said that the non-disposal of the application under Order 41 Rule 27 CPC in the facts and the circumstances of the present case, has not caused any prejudice to the plaintiff/appellant. 9. In view of above, without going into the legality and propriety of the impugned judgment and decree passed by the first appellate court in the present second appeal, the impugned judgment and decree dated 23.05.2011 passed by the Court of Addl. District Judge No.1, Sikar, District Sikar (Raj.) is set aside and the matter is remitted back to the first appellate court for decision of the appeal on merits in accordance with law along-with the application for acceptance of additional evidence under Order 41 Rule 27 CPC. 10. The parties are directed to appear before the First Appellate Court on 08.03.2021. 11. The Registrar (Judicial) is directed to send back record of the case to the First Appellate Court forthwith.