Amin vs Kailash Chand
2021 Latest Caselaw 1570 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Second Appeal No. 615/2011

Amin S/o Shri Kamruddin, resident Mohalla Dhobian, Ward No.
Old 37- New 31, Sikar, Tehsil And District Sikar, Through At
Present Power of Attorney Holder Raj Kishore Saini S/o Shri
Goruram Saini, Aged 33 Years R/o Jagdamba Colony, Piprli Road,
Sikar, Tehsil And District Sikar
                                                           ----Plaintiff-Appellant
                                    Versus
Kailash Chand S/o Shri Shyamlal, Mohalla Dhobian, In Front Of
K.M. Jain Nursing Home, Sikar, Rajdoot Workshop, Near Samrat
Cinema, Sikar
                                                   ----Defendant-Respondent

For Appellant(s) : Mr. Amit Jindal, Adv. with Ms. Neetu Bhansali, Adv. and Mr. Vijay Luxmi, Adv.

For Respondent(s) : Ms. Anita Agrawal, Adv. with Mr. Laxmi Kant, Adv.

HON'BLE MR. JUSTICE GOVERDHAN BARDHAR

Order

12/02/2021

Challenge in the instant second appeal filed by the

appellant plaintiff under Section 100 CPC has been made to the

judgment and decree dated 23.05.2011 passed by the Court of

Additional District Judge No.1, Sikar, District Sikar (Raj.) [for short

'the First Appellate Court'] in Civil Regular Appeal No. 77/2018

whereby the Additional District Judge No.1, Sikar while dismissing

the appeal filed by the appellant plaintiff affirmed the judgment

and decree dated 03.12.2005 passed by the Court of Additional

Civil Judge (Jr. Division) No.2, Sikar [for short ' the trial Court'] in

(2 of 4) [CSA-615/2011]

Civil Suit No. 158/2003 by which suit filed by the plaintiff

appellant for eviction of the defendant was dismissed.

The facts summarized in brief are that plaintiff filed a

suit for eviction against the defendant mainly on the grounds of

default in payment of rent, bonafide necessity, non-user of the

shop in dispute by the defendant and also availability of

alternative accommodation with the defendant. Written statement

of denial was filed by the defendant. On the basis of pleadings of

the parties, the trial Court framed eight issues and one another

issue as 1(a). The plaintiff in support of his case produced seven

witnesses and got exhibited some documents. The defendant in

support of his case produced four witnesses and got exhibited

some documents. The trial Court vide its judgment and decree

dated 03.12.2005 dismissed the suit filed by the plaintiff. The

plaintiff aggrieved and dissatisfied with the judgment and decree

dated 03.12.2005 passed by the trial Court preferred an appeal

before the First Appellate Court which was dismissed vide

judgment and decree dated 23.05.2011.

Learned counsel for the plaintiff/ appellant argued that

both the courts below dismissed the suit for eviction filed by the

plaintiff/appellant. The application under Order 41 Rule 27 CPC

had remained undecided, the same has caused prejudice to the

plaintiff/appellant and the non-disposal of the application led to

miscarriage of justice.

In support of his submissions, learned counsel has

placed reliance in a case of Hakam Singh v. State of Haryana

& Ors., reported in 2009(1) WLC (SC) Civil 314.

Learned counsel for the defendant/respondent-tenant

has argued that the judgment- Hakam Singh (supra) cited by the

(3 of 4) [CSA-615/2011]

counsel for the plaintiff/appellant, as noticed above, did not lay

down as a rule that irrespective of nature of application under

Order 41 Rule 27 CPC, in case such an application is not decided

the matter has to be remanded to the first appellate court.

I have perused the impugned judgments and decrees

passed by both the Courts below, scanned and scrutinized the

entire material made available to the Court.

In the present case, the plaintiff/ appellant filed a suit

for eviction against the defendant on the grounds of default of

rent and bonafide necessity of his son, non-user of the shop in

dispute by the defendant and the availability of the alternative

accommodation with the defendant. The plaintiff/appellant moved

an application under Order 41 Rule 27 CPC on 08.07.2008. Reply

to the application was filed by the defendant on 03.10.2008.

Indisputably, both the courts below dismissed the suit

for eviction filed by the plaintiff/appellant. The documents

submitted by the plaintiff/appellant along-with the application

under Order 41 Rule 27 CPC pertain to the premises in question.

Thus, it cannot be said that the non-disposal of the application

under Order 41 Rule 27 CPC in the facts and the circumstances of

the present case, has not caused any prejudice to the

plaintiff/appellant.

In view of above, without going into the legality and

propriety of the impugned judgment and decree passed by the

first appellate court in the present second appeal, the impugned

judgment and decree dated 23.05.2011 passed by the Court of

Addl. District Judge No.1, Sikar, District Sikar (Raj.) is set aside

and the matter is remitted back to the first appellate court for

decision of the appeal on merits in accordance with law along-with

(4 of 4) [CSA-615/2011]

the application for acceptance of additional evidence under Order

41 Rule 27 CPC.

The parties are directed to appear before the First

Appellate Court on 08.03.2021.

The Registrar (Judicial) is directed to send back record

of the case to the First Appellate Court forthwith.

(GOVERDHAN BARDHAR),J

NK Sharma/55

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