D Puttaiah vs C N Parvathamma & Others

H.P. Sandesh, J

Heard the learned counsel appearing for the appellant and the respondents.

This matter is listed for admission and the counsel for the respondents brought to notice of this Court that the First Appellate Court though framed the point for consideration to consider the application filed under Order 41 Rule 27 of CPC as point No.3, while considering the Issue Nos1 to 4 together, not even discussed anything about the provision of Order 41 Rule 27 of CPC as well as the additional documents which have been produced by the appellant therein before the First Appellate Court and proceeded to pass the order on merits. The counsel also brought to notice of this Court to paragraph 3 of the judgment of the First Appellate Court wherein a reference is made with regard to filing of the said application. Having perused the entire judgment of the First Appellate Court even though point no.3 is framed for consideration of application filed under Order 41 Rule 27 of CPC, nothing is discussed in the judgment with regard to whether the additional documents are necessary for adjudication of the appeal or not. The First Appellate Court ought to have given the finding on the said point. It is also settled law that the application filed under Order 41 Rule 27 of CPC has to be considered along with the main appeal. The counsel for the respondents also not disputes the settled law that the application filed under Order 41 Rule 27 of CPC has to be considered along with the main appeal. The counsel for the respondents also admits that there is no discussion in the judgment of the First Appellate Court in respect of point No.3. When the First Appellate Court decided the appeal without considering Point No.3 and proceeded to pass an order on merits without giving an opinion with regard to that whether those additional documents are necessary for deciding the appeal on the germane issue involved between the parties, it is nothing but an error apparent on record. Hence, the matter requires to be remanded to the First Appellate Court with a direction to consider the application filed under Order 41 Rule 27 of CPC to decide the matter on merits.

In view of the discussions made above, I pass the following:

ORDER

i. The regular second appeal is allowed.

ii. The judgment and decree dated 07.01.2022 passed in R.A.No.24/2020 of the First Appellate Court is set aside and the matter is remanded to the First Appellate Court to consider the application filed under Order 41 Rule 27 of CPC and decide the case on merits in accordance with law within a period of one month from 28.06.2024.

iii. Respective parties and their counsel are directed to appear before First Appellate Court without fail on 28.06.2024 without expecting any notice.

iv. The counsel for the appellant has filed additional documents before this Court and those documents are directed to return to the appellant.

v. The appellant is directed to file necessary application before the First Appellate Court on 28.06.2024 itself for production of additional documents filed before the Court which are returned and the First Appellate Court is directed to consider the said application in accordance with law if it is filed.

vi. In view of disposal of the main appeal, I.As. if any, do not survive for consideration and the same stand disposed of.