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Rajinder Kour vs Lakhan Lal And Ors

Chhattisgarh High Court · Decided on 1 July 2019 · Citation: (2019) 07 CHH CK 0016

HON’BLE JUDGES
Sanjay K. Agrawal, J
ACTS & SECTIONS REFERRED
Code Of Civil Procedure, 1908 — Order 6 Rule 17, Order 41 Rule 27 · Constitution Of India, 1950 — Article 227
RESULT
Disposed Of
CASE NUMBER
Writ Petition 227 No. 516 Of 2019
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Judgment

8 paragraphs · 364 words

SanjayK. Agrawal, J

1.

This writ petition under Article 227 of the Constitution of India has been preferred by the petitioner against the impugned order dated 13/05/2019 passed in civil first appeal case No. H-21A/2017, whereby learned 1st A.D.J., Mahasamund has rejected application under Order 6 Rule 17 of CPC as well as application under Order 41 Rule 27 of CPC filed by the petitioner, without hearing the appeal on merits.

2.

Mr. Jameel Akhtar Lohani, learned counsel for the petitioner would submit that the impugned order dated 13/05/2019 is unsustainable and bad in law, as both the applications could have been taken for consideration at the time of final hearing, but were rejected, and that too, before hearing the appeal on merits.

3.

I have heard learned counsel for the petitioner, considered his submission and perused the records with utmost circumspection.

4.

It is well-settled law that applications under Order 6 Rule 17 of CPC and under Order 41 Rule 27 of CPC cannot be decided without hearing the appeal on merits first. [see: Vedwati (Smt.) Vs. Jagannath1; Sampurna Singh Vs. Harisingh2; Subedar Singh Vs. Mahavir Prasad Jain3]

5.

Be that as it may, the impugned order is contrary to the well-settled law in this regard, and cannot be sustained and is hereby set aside, subject to payment of cost of Rs. 2,000/- to respondents No. 1 to 6/plaintiffs. However, liberty is reserved in favour of respondents No. 1 to 6/plaintiffs to file suitable application for modification, if any. Learned first appellate Court is directed to dispose of the application under Order 6 Rule 17 of CPC and under Order 41 Rule 27 of CPC after hearing the appeal on merits, and till then, decree shall not be executed, subject to furnishing and undertaking by the petitioner that they shall abide by the decree of the first appeal within two weeks from today and the appeal will be finally decided within 45 days from the date of receipt of a copy of this order.

6.

With the aforesaid observations, this writ petition stands disposed of. No cost(s).

7.

A copy of this order be sent to the concerned first appellate Court by e-mail/fax.