Md. Abdul Haque And Ors vs Ultimate Legal Heirs Of Lt. Ahmed ...
2023 Latest Caselaw 366 Tri

                   HIGH COURT OF TRIPURA
                         AGARTALA
                         RSA 48/2022
Md. Abdul Haque and ors.                         .... Appellant(s)
                      Vs.
Ultimate legal heirs of lt. Ahmed Miah, lrs. of Md. Almach Miah
@ Ali, Alkum Ali and ors.
                                                ... Respondent(s)

For Appellant(s) : Mr. D. Bhattacharya, Sr. Advocate Mr. S. Das, Advocate For Respondent(s) : Mr. RG Chakraborty, Advocate

HON'BLE MR. JUSTICE ARINDAM LODH Order 10/05/2023 Heard Mr. D. Bhattacharya, learned senior counsel assisted by Mr. S. Das, learned counsel for the appellants. Also heard Mr. RG Chakraborty, learned counsel for the respondents.

This second appeal is directed against the judgment and decree dated 02.09.2022 passed by the learned District Judge, Unakoti District, Kailasahar, Tripura, in Title Appeal 37 of 2019 affirming the judgment and order dated 18.07.2019 passed by the learned Civil Judge, Senior Division, Court no. 1, Kailasahar, Unakoti District, in T.S.(P) 19 of 2016. The appeal is admitted to be heard on the following substantial questions of law:

(i) Whether both the courts below have committed serious error of law in not considering the petition filed by the plaintiffs under Order XLI Rule 27 CPC?

(ii) Whether the findings of the learned first appellate court in affirming the judgment and decree passed by the learned trial court are perverse?

After framing of these substantial questions of law, this court has put a specific question to learned counsel appearing for the respondents as to whether the matter should be remitted back to the learned first appellate court to hear and dispose of the petition filed by the plaintiffs under Order XLI Rule 27 of the CPC in accordance of law.

Mr. RG Chakraborty, learned counsel appearing for the respondents has fairly submitted that the petition filed by the plaintiffs under Order XLI Rule 27 of the CPC ought to have been disposed of on merit by the learned first appellate court.

In view of this submission, on consideration of the aforesaid substantial questions of law, as formulated by this court, and on mutual consent by the learned counsel appearing for the parties to the lis, in my opinion, it would be appropriate to remit back the matter to the learned first appellate court to dispose of the petition filed by the plaintiffs under Order XLI Rule 27 of the CPC on merit, and thereafter pass appropriate order/orders or judgment/ judgments in accordance with law.

Accordingly, the matter is remitted back to the court of learned District Judge, Unakoti Judicial District, Kailasahar for fresh adjudication and to dispose of the petition filed by the plaintiffs under Order XLI Rule 27 of the CPC for adducing additional evidence before passing the judgment. In the light of the aforesaid direction, the judgment and decree dated 02.09.2022 passed by the learned first appellate court (District Judge, Unakoti Judicial District, Kailasahar) in Title Appeal 37 of 2019 stands set- aside and quashed.

Resultantly, the instant second appeal stands disposed with the aforesaid terms.

JUDGE

Saikat