Liakat Ali (Since Deceased) ... vs Afsar Khan
2010 Latest Caselaw 3882 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Date of Judgment: 19th August, 2010

+                        R.S.A. No.115/2007

LIAKAT ALI (since deceased)
Through LRs.                                   ...........Appellant
                    Through:         Mr.J.C.Mahindru, Advocate.

                   Versus

AFSAR KHAN                                    ..........Respondent
                         Through:    Mr.P.N.Bhan, Advocate.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?                   Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J. (Oral)

1. This second appeal has impugned the judgment dated

25.1.2007. The trial judge vide judgment and decree dated

28.10.2005 had decreed the suit of the plaintiff Afsar Khan filed

for possession, damages and permanent injunction in his favour.

Suit property was shops bearing no.231/2 & 231/3 situated in

house no.234, Main Road, Jafarabad, Delhi-53 which had been let

out to the defendant initially at a monthly rental of Rs.75/- per

month which was increased to Rs.82.50 paisa per month. The

first appellate court vide impugned judgment and decree dated

25.1.2007 had endorsed the findings of the trial judge.

2. In this second appeal, the substantial questions of law

were formulated on 15.5.2007 which inter alia read as follows:

1. Whether it was necessary for the First Appellate Court to decide the application moved under Order 41 Rule 27?

2. Whether the Trial Court had jurisdiction to try the present case?

3. On behalf of the appellant it has been urged that in view of

the judgment of the Apex Court reported in (2006) 9 SCC 748

Sanjiv Goel vs. Avtar S.Sandhu where an application under Order

41 Rule 27 of the Code of Civil Procedure (hereinafter referred

to as 'the Code') had been filed before the appellate court, the

appeal had been decided without disposing of the application,

the Supreme Court had held that it was a miscarriage of justice.

The order of the High Court dismissing the second appeal in

limine without adverting to this submission of the appellant had

been set aside. Matter had been remanded back to the first

appellate court for decision on the pending application filed

under Order 41 Rule 27 of the Code.

4. Learned counsel for the appellant has argued that in view

of the ratio of the aforesaid judgment which is clearly and

squarely applicable to the facts of the instant case, the

application filed by the appellant before the first appellate court

which had remained pending must first be decided; the case be

remanded back to the first appellate court for decision on its

merits.

5. Admittedly, in March 2006, before the first appellate court

an application under Order 41 Rule 27 of the Code had been filed

by the appellant Liyakat Ali. This application sought a prayer for

leading additional evidence; reply had also been filed. Perusal of

the trial court record shows that this application however

remained undecided and no orders were passed on this

application. The appeal was, however, disposed of on 25.1.2007

without any reference to this application.

6. Contention of the learned counsel for the appellant prima

facie appears to be correct. There has been a miscarriage of

justice qua the appellant. It was incumbent upon the first

appellate court i.e. the court of Additional District Judge to have

dealt with the application filed under Order 41 Rule 27 of the

Code by virtue of which the appellant had sought permission to

lead additional evidence. Application remained pending and the

appeal was decided.

7. Accordingly, the impugned judgment dated 25.1.2007 is

set aside. Matter is remanded back to the District Judge for

assigning it to an appropriate court for decision on the

application of the appellant filed under Order 41 Rule 27 of the

Code on merits in accordance with law. Parties to appear before

the learned District & Sessions Judge-I, Tis Hazari Courts, Delhi

on 30.8.2010, who will ensure that the concerned court shall

dispose of the pending application as also the appeal within an

outer limit of six weeks from 30.8.2010. Needless to state that

the appellant will be at liberty to re-agitate the findings of the

first appellate court, if so deemed fit. Appeal is disposed of in

the above terms.

INDERMEET KAUR, J.

AUGUST 19, 2010 rb