Rajasthan High Court - Jaipur
Kishanlal Thr Lrs vs Ramchandra Thr Lrs on 20 January, 2020
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 188/2017
Kishanlal S/o Choturam Mali, By Caste Mali, R/o Khundanpuri
Bavadi Wala Kunwa, Alwar, Rajasthan
1/1. Hari Saini S/o late Shri Kishanlal, R/o Bavadi Wala Kunwa,
Patel Nagar, Manna Ka Road, Alwar (deceased)
1/1/1 Mahesh S/o Late Shri Hari Saini
1/1/2 Prakash S/o Late Shri Hari Saini
1/1/3 Sanjay S/o Late Shri Hari Saini
All R/o Bavadi wala Kunwa, Patel Nagar, Manna Ka Raod, Alwar
1/2. Rajesh S/o Late Kishan Lal, R/o Gram Gujuki, Tehsil and
District Alwar.
----Appellants/Defendants
Versus
1. Ramchandra S/o Ramprasad Darji, R/o Bichu Ki Gali,
Alwar (deceased through His LRs)
1/1. Sushil W/o Late Ramchandra Darji, R/o Bichu Ki Gali,
Alwar
1/2 Sureshchandra S/o Late Ramchandra Darji, R/o Bichu
Ki Gali, Alwar
1/3 Dinesh Chand S/o Late Ramchandra Darji, R/o Bichu
Ki Gali, Alwar
1/4. Kamal Chand S/o Late Ramchandra Darji, R/o Bichu
Ki Gali, Alwar
1/5 Rajkumar S/o Late Ramchandra Darji, R/o Bichu Ki
Gali, Alwar
1/6 Rajendra Kumar S/o late Ramchandra Darji, R/o
Bichu Ki Gali, Alwar, at present residing at Deeg
---Respondents/Plaintiffs
2. Gangasahay S/o Ramnath, By Caste Mali, R/o Khudanpuri
Bavadi Wala Kunwa, Alwar
3. Ramkishore S/o Ramnath, By Caste Mali, R/o Khudanpuri
Bavadi Wala Kunwa, Alwar
4. Bhagwan Allies Pappi S/o Ramnath, By Caste Mali, R/o
Khudanpuri Bavadi Wala Kunwa, Alwar
---Respondents/Defendants
5. Smt. Kesar D/o Kishanlal, R/o Gram Barkheda, Tehsil And
District Alwar
6. Smt. Suman D/o Kishanlal, R/o Rajgad, District Alwar
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7. Smt. Dhama D/o Kishanlal, R/o Old Rajgad, District Alwar
8. Shardha D/o Kishanlal, R/o Bavadi Wala Kunwa, Patel
Nagar, Alwar
----Performa/Respondents
For Appellant(s) : Mr. Gajendra Singh Rathore
For Respondent(s) : Mr. Ajay Goyal
HON'BLE MR. JUSTICE PRAKASH GUPTA
Judgment
20/01/2020
1. Instant second appeal has been preferred against the
judgment and decree dated 28.01.2017 passed by Additional
District Judge No.3, Alwar, (hereinafter referred to as the
"Appellate Court") in Civil Regular Appeal No.68/2013 whereby the
Appellate Court dismissed the appeal and upheld the judgment
and decree dated 23.04.2007 passed by Civil Judge (J.D.) &
Judicial Magistrate No.4, Alwar (hereinafter referred to as the "trial
Court") in civil case No.34/11/2004.
2. Brief Facts giving rise to the present appeal are that the
appellants-plaintiffs (hereinafter referred to as "the plaintiffs")
filed a suit against the respondents-defendants No.2 to 4
(hereinafter referred to as "the defendants") for permanent
injunction. The suit of the plaintiffs was dismissed by the Trial
Court vide judgment dated 23.04.2007.
3. Being aggrieved by the same, the plaintiffs preferred an
appeal before the Appellate Court which also came to be
dismissed vide judgment dated 28.01.2017. The plaintiffs
therefore, has filed the present second appeal.
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4. It is submitted by learned counsel Shri Gajendra Singh
Rathore appearing for the plaintiffs that an application under
Order 41 Rule 27 CPC for taking evidence on record was filed
before the Appellate Court but the said application has not been
decided by the Appellate Court. 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 first Appellate
Court.
5. On the other hand, learned counsel for the respondents
Shri Ajay Goyal fairly admits that the application filed by the plaintiffs under Order 41 Rule 27 before the Appellate Court has not been disposed of by the Appellate Court.
6. Heard learned counsel for the parties and perused the material available on record.
7. Having regard to the submissions made by learned counsel for the parties, I am satisfied that in this appeal following substantial question of is are involved:
"Whether the appellate court was right in not deciding the application filed by the appellant under Order 41 Rule 27 CPC?"
8. It is not in dispute that an application under Order 41 Rule 27 CPC was filed by the plaintiffs before the Appellate Court and the same has not been decided by the Appellate Court.
9. In Hakam Singh & Anr. Vs. State of Haryana & Ors.: 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 (Downloaded on 24/01/2020 at 09:07:03 PM) (4 of 5) [CSA-188/2017] 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".
10. In Jatinder Singh and Another Vs. Mehar Singh and Others: (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 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."
11. In the light of aforesaid, substantial question of law is decided accordingly. The impugned judgment passed by the Appellate Court is set aside and the matter is liable to be remitted back to the Appellate Court for a decision afresh.
12. Resultantly, the appeal is allowed and the judgment and decree dated 28.01.2017 passed by the Appellate Court in appeal No.68/2013 is set aside and the matter is remitted back to the Appellate Court to decide it afresh on merits along with the (Downloaded on 24/01/2020 at 09:07:03 PM) (5 of 5) [CSA-188/2017] application under Order 41 Rule 27 C.P.C. in accordance with law within one month from the date of receipt of certified copy of this judgment. The parties are directed to remain present before the Appellate Court on 07.02.2020.
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