Partly allowed

Smt. Kalawati Devi and 3 Others v. Sri Girdhar Basfor and 2 Others

Allahabad HC17 Dec 2018A227/9235/2018

Case brief

AI extract

What is this about?

This is a writ petition challenging an appellate order that rejected an application for additional evidence on grounds of non-compliance and lack due diligence. The High Court held that the provisions of Order 41 Rule 27 CPC do not apply in appeals arising from temporary injunctions. The impugned order was set aside and the matter remitted for fresh consideration.

What did the court decide?

The order dated 11.10.2018 passed in Misc. Civil Appeal No. 10 of 2015 is set aside and the matter remitted back to the First Appellate Court for fresh consideration with opportunity being given to re

Smt. Kalawati Devi and 3 Others Vs Sri… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 36

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Case :- MATTERS UNDER ARTICLE 227 No. - 9235 of 2018 Petitioner :- Smt. Kalawati Devi And 3 Others Respondent :- Sri Girdhar Basfor And 2 Others Counsel for Petitioner :- Awadhesh Kumar Malviya

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Hon'ble Mrs. Sunita Agarwal,J.

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Heard learned counsel for the petitioner.

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For the order passed hereinabove, this Court does not find any reason to issue notice to the respondents so as to keep the present petition pending.

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The present petition is directed against the order dated 11.10.2018 passed in Misc. Civil Appeal No. 10 of 2015 (Kalawati Devi and others vs. Girdhar Bansfor and others) wherein an application dated 13.5.2015, purported to be an application under Order 41 Rule 27 of the Code of Civil Procedure, has been filed by the appellant to bring additional evidence on record, for disposal of temporary injunction matter at the stage of appeal.

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It is admitted to the parties that the evidence in the Original Suit No. 802 of 2009 has yet not been commenced. The Misc. Civil Appeal No. 10 of 2015 has arisen out of an order of disposal of temporary injunction application dated 27.1.2015. The question before the First Appellate Court in Misc. Appeal was only to examine the correctness of the order dated 27.1.2015 passed by the trial Court.

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At this stage, the provisions of Order 41 Rule 27 CPC are not attracted to its entirety, inasmuch as, the stage of Order 41 of Rule 27 CPC, for exercise of discretion by the First Appellate Court to allow the appellant to bring additional evidence on record, has yet not reached.

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The Court below has, therefore, erred in passing the order dated 11.10.2018 on the ground that due diligence has not been exercised by the appellant in bringing the evidence before the First Appellate Court. The question of due diligence does not arise in a Misc. Appeal arising out of temporary injunction matter, filed under Order 43 Rule 1(r) of the Code of Civil Procedure.

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For the aforesaid, the order dated 11.10.2018 passed by the First Appellate Court in MIsc. Civil Appeal No. 10 of 2015 is hereby set aside.

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The matter is remitted back to the First Appellate Court for fresh consideration of application 34-Ga in the light of the legal principles stated hereinabove, after giving due opportunity to the respondents to file their objection.

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The petition is disposed of .

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Order Date :- 17.12.2018/Brijesh

Smt. Kalawati Devi and 3 Others v. Sri Girdhar Basfor and 2 Others

Case brief

What is this about?

What did the court decide?

Smt. Kalawati Devi and 3 Others v. Sri Girdhar Basfor and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

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