Billu Singh S/o Madan Singh Shekhawat vs Smt. Memal W/o Late Shri Badri Singh

This second appeal is directed against the judgment and

decree dated 4th April, 2017 passed by the learned Additional

District Judge, Kotputli, District Jaipur (hereinafter referred to as

''the lower appellate court'') in Civil Appeal No.41/2013 whereby

the learned appellate court has dismissed the appeal filed by the

defendant-appellant and confirmed the judgment and decree

dated 1th October, 2013 passed by learned Civil Judge (Jr. Div.)

Kotputli, District Jaipur (hereinafter referred to as `the trial

court'').

Brief facts, giving rise to this appeal are that the plaintiff

respondents Smt. Memal and Shivpal Singh filed a suit against the

defendant-appellant Billu Singh and proforma respondents for

permanent injunction on various grounds which was decreed by

the trial court vide judgment and decree dated 1010.2013. Feeling

aggrieved against the judgment and decree of the trial court,

defendant-appellant Billu Singh filed civil appeal before the lower

appellate court which was dismissed vide judgment and decree

dated 04.04.2017.

Aggrieved against the judgments and decree of both the

courts below, the defendant-appellant has filed the present second

appeal.

It is submitted by Shri Alok Garg, learned counsel for the

defendant-appellant that during pendency of the appeal before the

lower appellate court an application under Order 41 Rule 27 read

with Section 151 CPC had been filed by the appellant on 1 st

September, 2016 and this application left undecided by the

learned lower appellate court. It is further submitted that on this

ground alone, the impugned judgment and decree of the lower

appellate court is liable to be set aside and the matter is required

to be remanded back to the lower appellate court to decide the

same afresh.

On the other hand, Shri Anand Bhardawaj, learned counsel

for plaintiff-respondents fairly admitted that the application filed

under Order 41 Rule 27 CPC has not been decided by the lower

appellate court, therefore, he has no objection if the matter is

remanded back to the lower appellate court.

I have considered the rival submissions made by the learned

counsel for the parties.

It is not in dispute that application under Order 41 Rule 27

CPC was filed by the defendant-appellant in the lower appellate

court but the same is left undecided by the lower appellate court.

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 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

(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."

In the light of the aforesaid, the judgment and decree

impugned are liable to be set aside and the matter is liable to be

remitted to the lower appellate Court for a decision afresh.

In the result, the appeal is allowed. The judgment and

decree dated 04.04.2017 passed by Additional District Judge

Kotputli, District Jaipur in civil appeal No.41/2013 is set aside

and the matter is remitted back to the lower appellate Court to

decide it afresh on merits along with the application filed under

Order 41 Rule 27 of the Civil Procedure Code in accordance with

the law. The parties are directed to remain present before the

appellate Court on 5th July, 2017.

The appellate Court is directed to decide the appeal

expeditiously but not later than four months from the date of

receipt of this Order.

13 In the meantime, the parties are directed to maintain

status quo with regard to the property in dispute.

The office is directed to send back the record alongwith a

copy of this order, forthwith.