Smt. Durgamma @ Javanamma and Sri Nagaraju vs Smt. Shivalingamma

A.S. Pachhapure, J.—The appellants have challenged the judgment and decree of the first appellate Court in RA No. 10/2007 reversing the judgment and decree of the trial Court, by dismissing the suit and granting a decree in favour of the respondents 1 to 7. Without going into the facts in detail the appeal can be disposed of on short questions.

The appellants herein, filed an application under Order 41, Rule 27 of the CPC seeking permission to produce two additional documents. Though, the appellants herein are the respondents before the first appellate Court, the objections to the said applications were filed and the lower appellate Court has allowed the appeal of the respondents 1 to 7 by setting aside the judgment and decree of dismissal granted by the trial Court, by granting a decree as prayed for by the respondents 1 to 7 herein. During the pendency of the appeal an application was filed and it was not considered. In the circumstances the following substantial question of law arises for consideration:

Whether the first appellate Court was justified in disposing off the appeal without considering the interim application filed u/s 41 Rule 27 of CPC and without any orders thereon?

The learned counsel for the appellants has placed reliance on the judgment of the Apex Court reported in Hakam Singh Vs. State of Haryana and Others, and submits that the lower appellate Court could have passed the order either rejecting or allowing the application and though it answered point No. 4 in the negative, so far as permission to produce additional evidence is concerned, the Court has not applied its mind at all and not considered the request of the appellants herein.

Whenever any application is filed, the Court while rejecting or granting the application has to assign reasons considering the requests and pass an appropriate order. In the absence of any orders on the said application the disposal of the appeal is improper. Perusal of judgment of the first appellate Court does not reveal any reason. No finding has been rendered and the application has not been disposed of. Consequently, this appeal deserves to be allowed and the matter has to be remitted back to the first appellate Court for disposal of the same in accordance with law. In the result, appeal is allowed. The judgment and decree passed by the first appellate Court is set aside and the matter is remitted back to the first appellate Court with a direction to consider the said application and dispose of the same along with the appeal within a period of six months from the date of communication of the order. To avoid delay, the parties are directed to appear before the first appellate Court on 02.01.2014.

All contentions are kept open.