Surjan Singh vs Harbhajan Singh and Others

Ram Chand Gupta, J.—The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the impugned order dated 23.12.2008 passed by learned Additional District Judge (Adhoc), Fast Track Court, Gurdaspur vide which order dated 26.5.2003 (Annexure P-5) passed by learned Civil Judge (Junior Division), Gurdaspur was reversed and with further prayer that application under Order IX Rule 13 of the CPC (for short ''the Code'') filed by the Respondents for setting aside ex-party judgment and decree in favour of the Petitioner be dismissed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned appellate court.

Preliminary objection has been taken by learned Counsel for the Petitioner that an application under Order 41 Rule 27 of the Code for additional evidence was filed by the Petitioner before the appellate court and that reply to the said application was also filed by the Respondent and though the case was adjourned for arguments on the said application and however, without deciding the said application, appeal filed by the Respondents has been accepted by learned appellate court.

This fact has not been disputed by learned Counsel for the Respondents. Moreover, perusal of various zimni orders placed on record shows that application under Order 41 Rule 27 of the Code was filed by the Petitioner on 11.3.2008, when the following order was passed:

Present: Sh. R.S. Goraya, Advocate for the Appellant. Sh. Pardeep Kumar, Advocate for Respondents.

The Respondents have moved application under Order 41 Rule 27 CPC. Copy supplied. Now for reply and consideration, to come up on 25.3.2008.

On 25.3.2008, the following order was passed:

Present: Sh. R.S. Goraya, Advocate for the Appellant. Sh. Pardeep Kumar, Advocate for Respondents.

Reply to the application under Order 41 Rule 27 CPC filed. Copy supplied. To come up on 21.4.2008 for consideration on the above said application.

Thereafter, the case was being adjourned for consideration and ultimately the main appeal has been decided by learned appellate court vide impugned order without deciding the application under Order 41 Rule 27 of the Code and without making any mention of the said application in the impugned order.

Hence, in view of these facts, the present revision petition is accepted and the impugned order is set aside. The appellate court is directed to decide the matter including application under Order 41 Rule 27 of the Code afresh after hearing both the parties. However, as the case has already become old, the appellate court is directed to expedite the hearing and efforts be made to decide the same within three months from the date of receipt of the certified copy of this order.