Mohan Das vs Bachan Lal

Mohd. Yamin, J.—Heard Learned Counsel for both the parties.

The appellate Court decided application under order 41 rule 27 C.P.C. by the impugned order dated 11.5.98 against which this revision has been preferred.

Learned Counsel for the petitioner cited Rampal Garg v. Shrimad Dayanand Orphanage, Ajmer, the Indian Law Reports (Rajasthan) 1971 page 506 in which it has been held that the appellate court acquires jurisdiction for admitting additional evidence only when it has applied its mind to the merits of the case after taking the material on record into consideration. So the order is amendable to Section 115 C.P.C.

Constant view of this Court has been that such like applications should be decided with appeal. Reference may again be made to Dayanand''s case (supra). Thereafter in so many other reported and unreported cases of this Court it was again held that such application should be decided along with appeal itself, (see 1995 DNJ (Raj.) 190 Birju v. Behram and Civil Revision No. 807/99 decided on 16.7.99). In view of this the appellate court did commit error by deciding application under order 41 rule 27 C.P.C. before deciding the appeal. As such the revision has to be allowed.

The revision is allowed, the impugned order or the appellate court is set-aside and the appellate court is directed to decide the application under order 41 rule 27 C.P.C. alongwith the appeal itself. The appellate court is directed to decide this application as well as appeal within four months from the receipt of copy of this order. Record of the courts below be sent back immediately.