Juri Parida and others vs Natabar Parida (since dead) through L.Rs.

This is a defendants'' appeal against affirming judgment.

Since the appeal is to be disposed of on a short point, the facts need not be recount in detail. Suffice it to say that Natabar Parida, predecessor-in-interest of the respondents as plaintiff, instituted the suit for permanent injunction. The defendants entered contest and filed a written statement. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendants filed T.A. No.3 of 1993 before the learned Civil Judge (Sr. Divn.), Aska, which was eventually dismissed.

The second appeal was admitted by a Bench of this Court on 15.11.2003 on the following substantial questions of law. "(i) That in view of the rival pleadings of the parties whether a suit for injunction without the prayer for declaration of title is maintainable.

(ii) Whether the lower appellate court erred in law in not considering the application under Order 41, Rule 27 C.P.C."

Mr. S.S. Rao, learned counsel for the appellant submits that during pendency of the appeal, an application under Order 41 Rule 27 C.P.C. was filed to admit certain documents as additional evidence. But then, the appellate court did not delve into the same and dismissed the appeal on merit. He further submits that the document sought to be admitted as additional evidence is vital bearing on the fate of the appeal. Thus the judgment is vitiated.

Per contra, Mr. P.K. Das, learned counsel for the respondents submits that against concurrent finding of the courts below, the appeal has been filed. There is no perversity on the finding of the courts below. The appellant has not moved the application for additional evidence. Thus no fault cannot be found on the learned appellate court.

Admittedly an application under Order 41 Rule 27 C.P.C. was filed before the learned appellate court to admit certain documents as evidence. Once an application is filed for admitting certain documents as additional evidence, a duty is cast upon the learned appellate court to decide the said application on merit at the time of hearing of the appeal. The same having not been done, the judgment of the learned appellate court is vitiated.

A priori, the judgment of the learned appellate court is set aside. The matter is remitted back to the learned appellate court to decide the appeal on merit and consider the application for additional evidence at the time of hearing of the appeal. In order to avoid further delay, parties shall appear before the learned Additional District Judge, Aska on 5th January, 2018 on which date learned appellate court shall fix a date of hearing and conclude the same within a period of three months. Since the appeal has been remitted back to the learned appellate court, the substantial question of law enumerated in ground no.1 has not been answered.