Punjab-Haryana High Court
Food Corporation Of India vs Joginder Singh on 25 January, 2023
RSA-3708-2014 & connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
223 (03 cases) (1)RSA-3708-2014(O&M)
Date of Decision :25.01.2023
Food Corporation of India and another ...Petitioners
Versus
M/s Joginder Singh Varinder Kumar ...Respondent
(2) RSA-4261-2014(O&M)
Food Corporation of India and another ...Petitioners
Versus
M/s Joginder Singh Varinder Kumar ...Respondent
(3) RSA-4283-2014 (O&M)
Food Corporation of India and another ...Petitioners
Versus
M/s Joginder Singh Varinder Kumar and others
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. K.K. Gupta, Advocate for the appellant-Corporation.
Mr. V.K. Sandhir, Advocate for the respondents.
***
1 of 5
::: Downloaded on - 31-01-2023 22:46:26 :::
RSA-3708-2014 & connected cases -2-
Harsimran Singh Sethi, J. (Oral)
By this common order, the above mentioned three regular
second appeals are being disposed of as all the appeals involve the same
question of law and similar facts.
The present regular second appeals which have been filed by
the appellant-Corporation have arisen out of the judgments dated
30.05.2011 and 18.12.2013 passed by the trial Court as well as Lower
Appellate Court respectively. The question which has been raised for the
consideration of this Court is that while the appeal was pending before the
Lower Appellate Court against the judgment and decree passed by the trial
Court dated 30.05.2011 as well as cross-objections filed by the plaintiffs, an
application was filed by the respondents therein i.e. appellant-Corporation
under Order 41, Rule 27 of the CPC for leading additional evidence on
05.07.2013 in which, though, notice was issued but the same was not
decided by the Lower Appellate Court before finally deciding the appeal as
well as cross-objections.
Learned counsel for the appellant-Corporation argues that the
said aspect of non-deciding of the application for leading additional
evidence filed by the appellant-Corporation under Order 41, Rule 27 of the
CPC before finally deciding the appeal and cross-objections is causing
prejudice to the appellant-Corporation as their valuable right of producing
additional evidence has not been considered and allowed by the Lower
Appellate Court. Reliance has been placed on the judgement of the Hon'ble
Supreme Court of India in Appeal (Civil) 2699-2008 titled as Hakam
Singh vs. State of Haryana and others decided on 09.04.2008 wherein
also, Hon'ble Supreme Court of India had set aside the order passed by this
2 of 5
RSA-3708-2014 & connected cases -3-
Court on the ground that the application under Order 41, Rule 27 of the
CPC seeking production of additional evidence at the appellate stage
remained pending and the final order was passed without any decision on
the application under Order 41, Rule 27 of the CPC.
Learned counsel for the respondents after going through the
Lower Courts record concedes the factum of filing of application by the
appellant-Corporation under Order 41, Rule 27 of the CPC, notice of which
was issued to the respondents by the Lower Appellate Court during the
pendency of the appeal therein and reply to the said application was also
filed by the respondents. Learned counsel for the respondents also concedes
the fact that while deciding the appeal, application under Order 41, Rule 27
of the CPC remained pending and no order has been passed with regard to
the said application.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
As per the settled principle of law settled by the Hon'ble
Supreme Court of India on the issue concerned in Hakam Singh (supra)
the order passed in the appeal cannot be sustained and the Lower Appellate
Court is liable to be directed to decide the appeal again after passing an
appropriate order on the application filed under Order 41, Rule 27 of the
CPC. Relevant paragraphs of the judgment are as under:-
"4. Without going into the facts in detail, these appeals
can be disposed of on a very short point. It is an admitted
position that an application under Order 41 Rule 27 of the
Code of Civil Procedure (In short "CODE") for
acceptance of additional evidence was filed before the
High Court in the aforesaid First Appeals, which were
3 of 5
RSA-3708-2014 & connected cases -4-
dismissed by the High Court by the impugned order.
However, the application for acceptance of additional
evidence under Order 41 Rule 27 of the CODE was not
considered by the High Court while disposing of the
appeal.
5. That being the position, without going into the legality
and propriety of the impugned order of the High Court
passed in the aforesaid appeals, we set aside the same and
remit back the cases to the High Court for decision of the
Appeals afresh on merits and in accordance with law
along with the application for acceptance of additional
evidence under Order 41 Rule 27 of the CODE.
6. Accordingly, the impugned order is set aside. The High
Court is requested to dispose of the First Appeals in the
light of the observations and directions made hereinabove
within three months from the date of supply of a copy of
this Order along with application for acceptance of
additional evidence under Order 41 Rule 27 of the
CODE."
Learned counsel for the respondents has not been able to show
that the said judgment in Hakam Singh (supra) is not applicable in the
facts and circumstances of the present case.
Keeping in view the above, present regular second appeals are
allowed on the ground that non-deciding of the application filed by the
appellant under Order 41, Rule 27 of the CPC has caused prejudice to the
appellant but without making any observation on the merits of the case
accordingly, the judgment of the Lower Appellate Court dated 18.12.2013 is
set aside and the case is remanded back to the Lower Appellate Court with a
direction to decide the appeal as well as cross-objections filed by the
respondents afresh after deciding the application filed by the appellant-
Corporation under Order 41, Rule 27 of the CPC.
4 of 5
RSA-3708-2014 & connected cases -5-
Learned counsel for the respondents at this stage submits that
decree of the trial Court dated 30.05.2011, as modified by the lower
Appellate Court vide order dated 18.12.2013, has already been complied
with.
As only the judgment of the Lower Appellate Court has been
set aside by this Court and that too on technicalities, the execution of the
decree passed by the trial Court will be subject to the order passed in the
appeal.
Registry is directed to return the record of the Courts below to
the concerned Courts.
Parties are directed to appear before the Lower Appellate Court
on 20.07.2023.
As the mater is pending consideration before the Courts for the
last so many years, it will be much appreciated, if the Lower Appellate
Court decides the appeal along with the application filed therein under
Order 41, Rule 27 of the CPC as expeditiously as possible preferably within
a period of six months.
Main appeals as well as civil miscellaneous applications
pending if any, are disposed of.
A photocopy of this order be placed on the file of connected
cases.
January 25, 2023 (HARSIMRAN SINGH SETHI)
aarti JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
5 of 5
