Bombay High Court
Sukhdeo S/O Baliram Gadhe vs Parashram S/O Namdeo Kamble And ... on 31 August, 2017
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
SECOND APPEAL NO.250 OF 2016
APPELLANT: Sukhdeo S/o Baliram Gadhe, Aged
about 48 years, Occ: Labourer, R/o Near
(On R.A.)
Bouddha Library, Ashok Nagar, Akola,
Tah. And Distt. Akola.
-VERSUS-
RESPONDENTS: 1. Parashram S/o Namdeo Kamble, Aged
(On R.A.) about 67 years, Occ: Retd. R/o Ashok
Nagar, Akola, Tah. And Distt. Akola.
2. Municipal Corporation Akola, Through
its commissioner, Akola, Tah. And Distt.
Akola.
Shri N. R. Tekade, Advocate for the appellant.
CORAM: A.S. CHANDURKAR, J.
DATED: AUGUST 31, 2017.
ORAL JUDGMENT :
1. Admit.
2. In view of notice for final disposal, the appeal has been
heard on the following substantial question of law:
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Whether the appellate Court committed an error in
not deciding the application moved by the appellant
for leading additional evidence under provisions of
Order XLI, Rule 27 of the Civil Procedure Code along
with the appeal?
3. The respondents though served have not chosen to contest
the appeal. On 16-8-2017 hearing of the appeal was adjourned to grant
an opportunity to the respondents. Despite that they have not entered
their appearance. Hence, the learned Counsel for the appellant has been
heard on the substantial question of law as framed.
4. The respondent no.1 had filed suit for declaration and
perpetual injunction. The declaration sought was with regard to the
alleged illegality in the action of the respondent no.2 of seeking to
demolish the suit property and making reconstruction. The trial Court
by its judgment dated 30-6-2007 partly decreed the suit and passed a
decree for perpetual injunction. Being aggrieved the defendant no.1
filed Regular Civil Appeal No.96 of 2007. During pendency of the
appeal, the appellant moved an application below Exhibit-21 under
provisions of Order XLI Rule 27 of the Code of Civil Procedure, 1908.
The appellant sought permission to lead additional evidence on the basis
of monthly receipts issued by the respondent no.2. The original plaintiff
filed his say and opposed that application. This application was kept
pending and the appeal was ultimately decided on 8-1-2015. The appeal
came to be dismissed. Hence, the present second appeal.
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5. Shri Takade, learned Counsel for the appellant submitted
that the appellate Court committed an error by not deciding the
application below Exhibit-21 along with the appeal. He submitted that
there is no reference to the adjudication on this application by the
appellate Court and the appeal has been decided without either granting
or refusing permission to lead additional evidence. This had caused
prejudice to the case of the appellant. He therefore submitted that the
judgment of the appellate Court is liable to be set aside.
6. I have perused the impugned judgment. I have also
perused the certified copy of the application below Exhibit-21 that was
moved under provisions of Order XLI Rule 27 of the Code. In this
application, the appellant sought permission to lead additional evidence.
As per the law laid down in Union of India Vs. Ibrahim Uddin & another
2012 (8) SCC 148, it was necessary for the appellate Court to have
decided this application along with the appeal. Failure to do so has thus
vitiated the impugned judgment. This aspect is clear from the aforesaid
law as laid down by the Hon'ble Supreme Court. Hence, on this short
ground, the judgment of the appellate Court deserves to be set aside.
7. Accordingly the substantial question of law is answered by
holding that the appellate Court committed an error by not deciding the
application moved by the appellant for leading additional evidence
under provisions of Order XLI Rule 27 of the Code along with the
appeal. As a result, the following order is passed:
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ORDER
(1) Judgment dated 8-1-2015 passed in Regular Civil Appeal
No.96/2007 is quashed and set aside. The proceedings are remanded to
the appellate Court for fresh adjudication after considering the judgment
of the Hon'ble Supreme Court referred to in paragraph no.6 herein
above.
(2) The appellant shall appear before the appellate Court on
11-9-2017. The appeal shall be decided on its own merits expeditiously
and without being influenced on merits by the observations made in this
order.
(3) Second appeal is allowed in aforesaid terms. No costs.
JUDGE
/MULEY/
