Nar Bahadur Khatiwada (Chettri) & Anr vs Devi Lall Khatiwada & Ors

Jitendra Kumar Maheshwari, CJ

This petition under Article 227 of the Constitution of Indiahas been filed challenging the order dated 19.06.2019 passed by the learned District Judge,

West Sikkim at Gyalshing in Title Appeal No. 02 of 2018 (Shri Nar Bahadur (Chettri) Khatiwada and another vs. Shri Devi Lall Khatiwada and

others) rejecting the application under Order XLI Rule 27 of the CPC filed by the plaintiff/appellant without hearing the appeal.

After hearing learned counsel appearing on behalf of both the parties at length, the law on the point is well settled that whenever an application filed

under Order XLI Rule 27 of the CPC by any of the parties at the appellate stage to take additional evidence on record, such application ought to be

heard and decided at the time of final hearing of the appeal and it cannot be decided separately as decided in the present case by passing the

impugned order.

In view of the foregoing,the order dated 19.06.2019 passed by learned District Judge, West Sikkim at Gyalshing rejecting the application under Order

XLI Rule 27 of the CPC is hereby set aside.

In view of aforesaid, this petition is allowed and disposed of with an observation that the application filedby the plaintiff/appellant be considered and

decided by the Appellate Court at the time of hearing of the appeal affording an opportunity to both parties.

Accordingly, W.P.(C) No.29 of 2019 stands disposed of.