Second appeal over the First Appellate Court's failure to decide an application under Order XLI Rule 27 CPC for additional evidence concerning parties' ages. The Court answered the substantial question affirmatively, quashed the lower appellate judgment and remanded for fresh consideration.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2024:BHC-NAG:5092
sa189.21.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR
SECOND APPEAL NO.189/2021
Sau. Sandhya w/o Yadavrao Bhad, aged 47 years, Occ. Household, r/o Plot No. 8, Near Boudha Vihar, Shiv Shakti Nagar, Udaynagar, Ring Road, Nagpur 440 038. .....APPELLANT
CORAM:ANIL L. PANSARE, J. DATED :- 29.04.2024
sa189.21.odt
2
ORAL JUDGMENT
Heard. Mr. J. J. Chandurkar, learned counsel for appellant and Mr. N. G. Jetha, learned counsel for respondent Nos. 1 to 4.
“(3) Whether the lower Appellate Court was under mandatory requirement to decide the application filed by the appellant under Order XXLI Rule 27 of the Civil Procedure Code, while deciding the appeal, particularly when the evidence sought to be brought on record went to the root of the matter as it was in respect of the age of the plaintiff no.2 and defendant no.3 on the date of the suit and had a bearing on its tenability?
3 sa189.21.odt
evidence. The First Appellate Court has, unfortunately, not rendered any finding in the judgment. The First Appellate Court has, therefore, not decided the application in terms of Order XLI Rule 27 of the Code. The substantial question of law is accordingly answered in the affirmative. Consequently, the appeal will have to be remanded back to the First Appellate Court, do decide the issue afresh. The First Appellate Court has already allowed the application partly. Prayer of reading document in evidence will be considered by the First Appellate Court, after giving both the
4 sa189.21.odt
parties an opportunity of hearing and if the First Appellate Court arrives at a conclusion that the prayer should be allowed, it will take recourse to the provisions of Order XLI Rule 27 of the Code and proceed to decide the appeal, in accordance with law. Accordingly following order.
ORDER
(i) Second Appeal is partly allowed.
(ii) Judgment and order dated 15.10.2020, passed by District Judge – 2, Amravati in Regular Civil Appeal No.73/2018 is quashed and set aside.
(iii) The matter is remanded back to the First Appellate Court for fresh consideration, in the light of what has been held in the body of order.
(iv) The parties shall appear before the First Appellate Court on 11.06.2024 at 11:00 a.m.
(v) At the request of the learned counsel for the respondents, the Appellate Court is requested to decide the first appeal, as expeditiously as possible but considering his docket.
(vi) Parties to bear their own costs.
(Anil L. Pansare, J.)
kahale
1 issue framed by the court
Was the First Appellate Court required to decide the appellant's application under Order XLI Rule 27 CPC for additional evidence before deciding the appeal?
1 provisions across 1 enactments
Sau. Sandhya w/o Yadavrao Bhad
Sandesh s/o Subhash Sonare
Sou. Deepika w/o Rajeshpant Sahane
Shri Subhash s/o Maroti Sonare
Shri Swapnil s/o Subhash Sonare
Anil L. Pansare
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
