Sham Lal vs Raja Ram
2022 Latest Caselaw 1577 P&H

                                   209

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                              AT CHANDIGARH

                                                                                         RSA-4492-2013 (O&M)
                                                                                     Date of decision : 14.03.2022

                                   Sham Lal                                                          ... Appellant(s)
                                                                        versus
                                   Raja Ram                                                      ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                                   Present :       Mr. Jaideep Verma, Advocate for the appellant.

                                                   Mr. P.P.S. Duggal, Advocate for the respondent.



                                   ALKA SARIN, J. (ORAL)

Heard in physical mode.

The present appeal has been preferred against the judgments

and decrees passed by the Courts below. The Trial Court had dismissed the

suit of the plaintiff-appellant for possession by way of specific performance.

The lower Appellate Court had partially reversed the judgment and decree of

the Trial Court by granting alternative relief.

Learned counsel for the plaintiff-appellant has contended that

an application for additional evidence under Order 41 Rule 27 of the Code of

Civil Procedure, 1908 (in short 'CPC') was moved by the plaintiff-appellant

before the lower Appellate Court on 14.10.2011 and the same was kept

pending to be heard with the main appeal. However, at the time of decision

in the main appeal, the said application for additional evidence has not been

considered and no order qua the same has been passed. Learned counsel for

YOGESH SHARMA 2022.03.15 10:57 the plaintiff-appellant has further contended that the said application for I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA-4492-2013 (O&M) -2-

additional evidence was necessary in order to show his readiness and

willingness to perform his part of the contract. In order to buttress his

arguments, learned counsel for the plaintiff-appellant has relied upon the

following judgments :

1. State of Rajasthan Vs. T.N. Sahani & Ors., [(2001) 10 Supreme Court Cases 619];

2. Ramesh Kumar & Anr. Vs. Bhagwan Dass Devki Nandan Dharamshala & Anr., [2012(2) PLR 534];

3. Municipal Committee, Ellenabad Vs. Shanti Devi, [2003(1) RCR (Civil) 85];

Per contra, learned counsel for the defendant-respondent has

vehemently contended that at no point of time was it pointed out by learned

counsel appearing before the Lower Appellate Court at the time of

arguments that an application for additional evidence remained pending.

Learned counsel for the defendant-respondent has further contended that the

said application even otherwise was not maintainable.

Heard.

Few facts relevant to the present lis may be noticed. The suit

was filed by the plaintiff-appellant for possession by way of specific

performance of agreement to sell dated 02.03.2006 qua the sale of land

measuring 19 kanals 6 marlas as detailed in the headnote of the plaint. The

Trial Court dismissed the suit inter alia holding that the plaintiff-appellant

was neither ready nor willing to perform his part of the contract. The

plaintiff-appellant preferred an appeal before the lower Appellate Court

against the judgment and decree of the Trial Court dated 07.02.2011. YOGESH SHARMA 2022.03.15 10:57 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA-4492-2013 (O&M) -3-

During the pendency of the appeal, an application under Order 41 Rule 27

CPC was filed by the plaintiff-appellant for additional evidence primarily to

show that the plaintiff-appellant had the capacity to pay. The said

application was ordered to be heard with the main case. However, at the

time of hearing of the appeal, the said application was not decided and

eventually the appeal was dismissed vide judgment and decree dated

29.04.2013. Aggrieved by the said judgments and decrees passed by the

Courts below, the present regular second appeal has been preferred.

A perusal of the record reveals that on 14.10.2011 an

application for additional evidence was filed by the plaintiff-appellant and

the case was adjourned to 21.10.2011 for filing of reply. On 21.10.2011

reply was not filed and the case was adjourned to 04.11.2011 for reply and

consideration. On 04.11.2011 reply to the application for additional evidence

was filed and the case was adjourned for consideration and for arguments on

the main case to 02.12.2011. Thereafter, on various dates, the case was

adjourned for arguments. The lower Appellate Court while deciding the

main appeal has not dealt with the application filed under Order 41 Rule 27

CPC.

In the case of T.N. Sahani (supra), Hon'ble the Supreme Court has

held as under :

"4. It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy AIR 1963 SC 1526 pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state YOGESH SHARMA 2022.03.15 10:57 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA-4492-2013 (O&M) -4-

of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law."

In the present case, since the application under Order 41 Rule

27 CPC remains undecided and as per the judgment of Hon'ble Supreme

Court in the case of T.N. Sahani (supra) it is incumbent upon the lower

Appellate Court to decide the application under Order 41 Rule 27 CPC along YOGESH SHARMA 2022.03.15 10:57 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh RSA-4492-2013 (O&M) -5-

with the main appeal, I deem it appropriate to allow the present appeal and

set aside the judgment and decree dated 29.04.2013 passed by the Lower

Appellate Court. The case is remanded back to the lower Appellate Court

for deciding the appeal afresh along with the application under Order 41

Rule 27 CPC.

The parties/their counsel are directed to appear before the lower

Appellate Court on 31.03.2022.

Disposed off accordingly.

Whether reportable : YES/NO

YOGESH SHARMA 2022.03.15 10:57 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh