Rajasthan High Court
Kachhi Samaj Bakani Andors Bakani ... vs Ramdayal Das And Anr on 18 August, 2021
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 139/2017
1. Kachhi Samaj Bakani and Ors. Bakani Through Gandi Lal S/o
Jwala Ji Kachhi R/o Bakani (Died)
1/1. Gauri Shankar S/o Seva Ji, R/o Bakani, Tehsil Jhalrapatan,
Distt. Jhalawar (Raj.). Now being represented present President
Prakash Chand S/o Lal Chand, aged about 41 years, R/o
Budhpura Mohalla, Near Bus Stand, Bakani, Distt. Jhalawar.
----Defendant-Appellant
Versus
1. Ramdayal Das S/o Harlal Das, R/o Bakani, Tehsil
Jhalrapatan, Dist. Jhalawar (Raj)
---Plaintiff Respondent
2. Devsthan Department, Rajasthan, Udaipur
----Defendant-Respondents
For Appellant(s) : Mr. Prakash Jha, Advocate
For Respondent(s) : Mr. Anshuman Saxena, Advocate
through VC
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
18/08/2021
Instant second appeal has been preferred by the
appellant-defendant (for short, 'the defendant') against the
judgment and decree dated 26.11.2016 passed by Additional
District Judge, Jhalawar (for short 'the Appellate Court') in Civil
Appeal No.84/2005, whereby the appeal filed by the respondent-
plaintiff (for short, 'the plaintiff') has been partly allowed and the
judgment and decree dated 26.11.2005 passed by Addl. Civil
Judge (Sr. Division), Jhalawar (for short, 'the Trial Court')
dismissing the plaintiff's suit for permanent injunction, has been
quashed and set-aside.
(2 of 4) [CSA-139/2017]
Brief Facts giving rise to the present appeal are that the
plaintiff filed a suit against the defendant for permanent
injunction. The suit of the plaintiff was dismissed by the trial Court
vide its judgment and decree dated 26.11.2005. Being aggrieved
by the same, the plaintiff preferred an appeal before the Appellate
Court, which was partly allowed vide judgment and decree dated
26.11.2016. The defendant, therefore, has filed the present
second appeal challenging the judgment and decree dated
26.11.2016 passed by the Appellate Court.
It is submitted by learned counsel appearing for the
defendant that on 3.10.2016, an application under Order 41 Rule
27 CPC was filed by the plaintiff before the Appellate Court, reply
of which was filed on 17.10.2016 and arguments were heard on
7.11.2016, but without allowing or dismissing the said application,
the documents annexed with the application were considered and
no opportunity of hearing was granted to the defendant.
Therefore, only on this ground, the judgment and decree of the
Appellate Court is liable to be set aside and the matter should be
remanded to the Appellate Court.
On the other hand, learned counsel for the plaintiff Shri
Anshuman Saxena fairly admits that the application filed by the
appellant under Order 41 Rule 27 CPC has not been decided by
the Appellate Court. Therefore, he has no objection in remanding
the matter to the Appellate Court for a decision afresh.
Heard learned counsel for the parties and perused the
material available on record.
(3 of 4) [CSA-139/2017]
Having regard to the submissions made by learned
counsel for the parties, this Court satisfies that in this appeal
following substantial question of law is involved:
"Whether the appellate court was right in
not deciding the application filed by the
appellant under Order 41 Rule 27 CPC?"
Indisputably, an application under Order 41 Rule 27
CPC was filed by the plaintiff before the Appellate Court but the
same has not been decided by the Appellate Court.
In Hakam Singh & Anr. Vs. State of Haryana &
Ors. reported in AIR 2008 SC 2990, Hon'ble Apex Court has
observed as under:-
"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 case 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".
In Jatinder Singh and Another Vs. Mehar Singh
and Others reported in (2009) 17 SCC page 465 Hon'ble Apex
Court in para No.4 has observed as under:-
"While deciding the second appeal,
however, the High Court had failed to take
notice of the application under order 41
Rule 27 of the Code of Civil Procedure and
decide whether additional evidence could
be permitted to be admitted into evidence.
In our view, when an application for
acceptance of additional evidence under
Order 41 Rule 27 of the Code of Civil
(4 of 4) [CSA-139/2017]
Procedure was filed by the appellants, it
was the duty of the High Court to deal with
the same on merits. That being the
admitted position, we have no other
alternative but to set aside the judgment of
the High Court and remit the appeal back
to it for a decision afresh in the second
appeal along with the application for
acceptance of additional evidence in
accordance with law."
In the light of aforesaid, the judgment and decree
dated 26.11.2016 passed by the Appellate Court liable to be set
aside and the matter is liable to be remitted back to the Appellate
Court for a decision afresh. Substantial question of law is decided
accordingly.
Resultantly, the appeal is allowed and judgment and
decree dated 26.11.2016 passed by the Appellate Court is set
aside and the matter is remitted to the Appellate Court for
deciding it afresh on merits along with the application under Order
41 Rule 27 C.P.C. in accordance with law. The parties are directed
to remain present before the Appellate Court on 10.9.2021.
The Appellate Court is directed to decide the appeal
alongwith application under Order 41 Rule 27 CPC expeditiously
but not later than three months from the date of receipt of
certified copy of this judgment.
Record be sent back to the Appellate Court forthwith.
(PRAKASH GUPTA),J
DK/71
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