Shiromani Gurudwara Parbandhak ... vs Iqbal Kaur And Ors
2023 Latest Caselaw 1051 P&H

104          IN THE HIGH COURT OF PUNJAB AND HARYANA
                       AT CHANDIGARH

                                  RSA-552-2015 (O&M)
                                  Date of Decision :18.01.2023

Shiromani Gurudwara Parbandhak Committee                   ...Appellant

             versus

Iqbal Kaur And Ors                                         ....Respondents

Coram :      Hon'ble Mr. Justice B.S. Walia

Present:     Mr. Paramjit Singh Thiara, Advocate and
             Mr. Apanjyot S. Virk, Advocate for the appellant.
                   ***

B.S. Walia, J. (Oral)

1. Appeal is against judgment and decree dated 15.09.2014,

passed by the learned Addl. District Judge, Patiala, upholding the judgment

and decree dated 05.12.2012, passed by the learned Civil Judge (Junior

Division), Rajpura, dismissing the suit for declaration filed by the appellant-

plaintiff.

2. At the outset, learned counsel contends that the sole question

which arises for consideration in the instant case is 'whether the impugned

judgment and decree passed by the learned Addl. District Judge, Patiala,

upholding the judgment and decree dated 05.12.2012, passed by the learned

Civil Judge (Junior Division), Rajpura, dismissing the suit for declaration

filed by the appellant-plaintiff without deciding the application under Order

41 Rule 27 CPC is legally unsustainable and is liable to be set aside and the

case remanded for fresh decision of the appeal on merits, after deciding the

application under Order 41 Rule 27 CPC.

3. Learned counsel contends that along with the appeal filed

before the learned Addl. District Judge, Patiala, the appellant-plaintiff filed

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an application under Order 41 Rule 27 of the CPC for permission to lead

additional evidence for proving the death certificates of Harnam Kaur and

Mangal Singh. Learned counsel contends that the same were essential for the

effective adjudication of the case as the learned trial Court has dismissed the

suit on the ground of absence of proof of death of Smt. Harnam Kaur and

Mangal Singh besides proving the second Will dated 25.04.1994, executed

by Mangal Singh, in favour of Gurudwara Shri DukhNiwaran Sahib, Patiala,

subsequent toexecution of Will in favour of his wife Smt. Harnam Kaur.

Learned counsel contends that although the aforementioned application

under Order 41 Rule 27 of CPC, was moved by the appellant-plaintiff before

the learned Appellate Court but no decision was taken on the same while

deciding the appeal, therefore, in view of the decision of Hon'ble the

Supreme Court in Sanjiv Goel vs. Avtar S. Sandhu 2006 (9) SCC 748 as

followed by a Coordinate Bench of this Court in Amandeep Singh vs.

Sohan Singh and others 2016 (3) PLR 145 the impugned judgment and

decree was liable to be set aside and the matter remanded for a fresh

decision on the appeal after decision of the application under Order 41 Rule

27 CPC. Relevant extract of the decision of Hon'ble the Supreme Court in

Sanjiv Goel's case (supra) is reproduced as under:-

2. However, it is the case of the appellant herein that the appeal pending

before the Addl. District Judge, Jalandhar was disposed of without any

order being passed on the application of the appellant under Order 41

Rule 27 of the CPC. This fact that no order was passed on the said

application by the said court while disposing of the appeal is not disputed

by the learned counsel appearing for the respondent-plaintiff. The appeal

was dismissed by the Addl. District Judge vide his judgment dated

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22.07.1997. The second appeal was filed against the judgment of the

learned Addl. District Judge by the appellant. We have been taken through

the grounds of appeal before the High Court in the second appeal and we

find that the appellant had taken a ground before the High Court about his

application under Order 41 Rule 27 having not been disposed of by the

Addl. District Judge before passing the Final judgment in the appeal

pending before him. In spite of a grievance having been made about the

non-disposal of the application under Order 41 Rule 27, the High Court by

its impugned judgment dated 13.11.1997 dismissed the appeal in limine

without adverting to this aspect. There is no mention about the grievance

of the appellant about his application under Order 41 Rule 27 having not

been disposed of in the order of the High Court. In the present appeal, at

the outset, the learned counsel for the appellant brought to our notice the

fact that an application under Order 41 Rule 27 Civil Procedure Code

filed by the appellant before the learned Addl. District Judge has remained

pending Throughout as no orders were passed on the said application by

the learned Add. District Judge or by the High Court. The learned counsel

appearing For the respondent is unable to dispute this fact that the said

application has not been disposed of so far. Without expressing any

opinion on the merits of the claim of the appellant in his application under

Order 41 Rule 27 Civil Procedure Code we are of the view that the said

application ought to have been disposed of by the learned Add. District

Judge before deciding the appeal which was pending before him. Non-

disposal of the said application has led to the miscarriage of justice.

Accordingly, we set aside the impugned judgment of the High Court as

well as the judgment dated 22.07.1997 of the learned Add. District Judge,

Jalandhar and remand the matter back to the District Judge, Jalandhar

for assigning the case to an appropriate court for decision of the appeal as

well as the application of the appellant under Order 41 Rule 27 Civil

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Procedure Code on merits in accordance with law. This appeal is disposed

of accordingly.

4. Learned counsel has referred to paragraph No.7 of the grounds

of appeal, in which, it has been mentioned that the application filed under

Order 41 Rule 27 of the CPC, before the learned Addl. District Judge,

Patiala, was not decided nor has any mention about the same been made in

final judgment dated 15.09.2014.

5. Despite service none is present on behalf of the respondents.

While noticing absence of the respondents despite service, on 10.01.2023,

the case was adjourned for today. Today also none has put in appearance on

behalf of the respondents nor has any request for adjournment or pass over

been made.

6. In the light of position noted above as well as decision of

Hon'ble the Supreme Court in Sanjiv Goel's case (supra) but without

expressing any opinion on the merits of the claim of the appellant as made in

the application under Order 41 Rule 27 of the CPC, I am of the considered

view that the said application ought to have been decided by the learned

Appellate Court before deciding the appeal, which was pending before it.

Non-disposal of the said application is unsustainable. Accordingly, the

impugned judgment passed by the learned Addl. District Judge, Patiala,

dated 15.09.2014, is set aside and the matter remanded to the learned District

Judge, Patiala, for assigning the case to the appropriate Court for fresh

decision of the appeal after decision on the application under Order 41 Rule

27 of the CPC, on merit, in accordance with law.

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7. The question of law arising in the instant appeal is answered

accordingly.

8. Appeal allowed in the aforementioned terms.

(B.S. Walia) Judge 18.01.2023 rajesh

Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No

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