Smt. Neha vs The State Of Madhya Pradesh
2024 Latest Caselaw 16683 MP

Madhya Pradesh High Court

Smt. Neha vs The State Of Madhya Pradesh on 18 June, 2024

Author: Avanindra Kumar Singh

Bench: Avanindra Kumar Singh

                                                                     1                                          SA-901-2022
                                          IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                                OFFICE NOTE
                                                               SA No. 901 of 2022
                                             (SMT. NEHA Vs THE STATE OF MADHYA PRADESH AND OTHERS)

                           Dated : 18-06-2024
                                  Shri Rakesh Jain - Advocate for the appellant.
                                  Shri S.S.Sengar - Panel Lawyer for the respondent Nos.1 & 2
                           ----------------------------------------------------------------------------------

Record is received.

This second appeal has been filed by the appellant/plaintiff being

aggrieved by judgment and decree dated 17.1.2022 passed by the Third District Judge, Khurai, District Sagar in Regular Civil Appeal No.29/2018 [Smt.Neha Vs. State of M.P. and another] whereby the appeal has been dismissed and judgment & decree dated 12.9.2018 passed by First Civil Judge Class-II, Khurai, District Sagar in RCSA No.07/2017 [Santosh Kumar Jain Vs. State of M.P. and others] has been affirmed.

2. Heard the learned counsel for the appellant on admission and perused the record. From perusal of the record it is seen that appellant alongwith the memo of appeal has filed a copy of certified copy of judgment of

the trial Court as also an application under Order 41 Rule 27 of CPC. It is stated in the application appellant has filed Annexure-A/1 which is a document establishing the title as also Annexure-A/2 which is a copy of judgment and decree dated 15.11.2019 passed in RCSA No.13-A/2017 [Santosh Kumar Vs. State of M.P.] in favour of Santosh Kumar Jain. It is submitted that this document was not considered by the learned first appellate Court in Civil Appeal No.29-A/2018 and vide judgment & decree dated 17.1.2022 has rejected the appeal.

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3. It is also seen that on 16.4.2019 an application under Order 41 Rule 27 of CPC was filed before Third ADJ, Khurai, District Sagar as I.A.No.02. On 09.12.2019, the learned first appellate Court directed that application to be considered during final arguments. But this application it seems was never heard and decided by the first appellate Court as is reflected from the impugned judgment. It is further seen that defendants remained ex parte before the trial Court as well as in first appellate Court. Therefore, this appeal seems to be arguable. It is admitted for hearing on the following substantial questions of law:-

"Whether due to non-deciding of an application under Order 41 Rule

27 CPC (I.A.No.02) by the first appellate Court, by which copy of 'patta' was filed as a source of title of Santosh Jain (predecessor-in-title of appellant- Smt.Neha) it has prejudiced the case of appellant before the first appellate Court, therefore, this case needs to be remanded to the first appellate Court to decide the pending application under Order 41 Rule 27 CPC and proceed further as per law?"

4. On payment of process fee by RAD mode within eight weeks issue notice of this appeal alongwith aforesaid substantial question of law.

5. Considered I.A.No.4302/2022, which is an application under Order 39 Rules 1 & 2 CPC. In the facts and circumstances, it is directed that meanwhile parties shall maintain status quo as it exists today in respect to the suit property till next date of hearing.

(AVANINDRA KUMAR SINGH) V. JUDGE

RM

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