Allowed

Harekrushna Giri v. State

Orissa HC8 Aug 2024RSA/344/2005

Case brief

AI extract

What is this about?

This second appeal challenged the confirming judgment of the First Appellate Court for failing to consider an application under Order 41 Rule 27 CPC filed by the appellant for additional evidence. The court held that such applications must be decided alongside the appeal and remitted the matter for fresh disposal.

What did the court decide?

Second appeal allowed; matter remitted to the First Appellate Court to dispose of the First Appeal afresh along with the petition under Order 41 Rule 27 CPC.

Harekrushna Giri Vs State — Civil Procedure and Limitation | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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RSA No.344 of 2005

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(An application under Section 100 of the Civil Procedure Code)

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Harekrushna Giri … Appellant - versus- State of Orissa & Ors ….. Respondents ………………………………………………………………………. For Appellant : Mr. M.Mohanty, Advocate. - versus- For Respondent : Mr. A.R.Dash, AGA --------------------------------------------------------------------------- CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 08.08.2024.

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Sashikanta Mishra,J . The Plaintiff is the appellant against the confirming judgment passed by learned Additional District Judge, Kendrapara on 09.02.2005 in RFA No.

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45 of 2002 whereby the judgment passed by learned Civil Judge, Senior Division, Kendrapara on

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13.11.2002 in T.S. No. 226 of 1997 was confirmed.

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In view of the order proposed to be passed, the facts of the case are not referred to in detail. It would suffice to mention that the plaintiff filed the above suit for declaration of title and permanent injunction. The suit was dismissed, against which the petitioner preferred the above mentioned first appeal.

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It is submitted by Mr. Maheswar Mohanty, learned counsel for the appellant that the plaintiff wanted to adduce certain further evidence before the First Appellate Court and accordingly filed an application under Order 41 Rule 27 of the CPC on 31.01.2005. It is his further submission that despite such petition being taken on record and an order being passed, the First Appellate Court that the said petition shall be considered on merit while leaving the appeal, it completely ignored the said petition while passing the impugned judgment.

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Page 2 of 5

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Mr. Mohanty has referred to the order sheet of the First Appellate Court available in the LCR. According to him, the petition was taken up for consideration on 08.02.2005 and the Court below passed an order that the same shall be considered on merit in the appeal. The judgment in the appeal was however passed on the next date, i.e. 09.02.2005 and nowhere in the judgment has the petition under Order 41 Rule 27 been dealt with. Mr. Mohanty therefore, submits that the First Appellate Court committed manifest illegality in ignoring the petition under Order 41 Rule 27.

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Mr. A.R.Dash, learned AGA for the State respondents fairly submits that as per the settled position of law if an application under Order 41 Rule 27 is filed, the same is to be dealt with by the Appellate Court in the judgment along with the merits of the case. In the instant case, the petition was admittedly not considered.

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This Court finds that the second appeal was admitted on 20.08.2010 on the following substantial question of law:

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“ Whether the 1^st Appellate Court has erred in law in not considering the application under order 41 Rule 27 and the judgment of Civil Court in proper perspective and thereby further erred in law in not remitting the appeal to the trial court for rebuttal of the same”

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This Court has gone through the order sheet of the Court below available in the LCR which reveals that

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the following order was passed on 08.02.2005.

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“Advocate for both the parties are present. No objection is filed. Heard on the petition dated 31.01.20225 in presence of both the counsels. Put up on 09.02.2005 for judgment. The petition under Order 41 Rule 27 CPC shall be considered on merit in the appeal.”

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Further on 09.02.2005, the judgment was pronounced.

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Reading of the judgment of the First Appellate Court does not reveal that the petition was considered in any manner. It is the settled position of the law that an application for adducing additional evidence at the stage of appeal filed under Order 41 Rule 27 of CPC is to be decided along with the appeal. In the instant case, the plaintiff-appellant filed an application on 31.01.2005. Copy of the said petition is also available

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in the LCR, whereby the plaintiff wanted to bring on

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record certain public documents in support of his case. In view of the position of law as referred above, it was incumbent upon the First Appellate Court to have considered the petition in the proper perspective while deciding the appeal on merits. Such course of action was not adopted by the First Appellate Court which renders the impugned judgment bad in law.

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For the foregoing reasons therefore, this Court is inclined to answer the substantial question of law framed by this Court in favour of the plaintiffappellants. Resultantly, the second appeal is allowed. The matter is remitted to the First Appellate Court with

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direction to dispose of the First Appeal filed by the plaintiff afresh along with the petition filed by him under Order 41,Rule 27, on 31.01.2005. Since the original suit is of the year 1997, the First Appellate Court shall do well to dispose of the appeal as expeditiously as possible, preferably within 6 months.

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…………….…………….

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Sashikanta Mishra, Deepak Judge Signature Not Verified

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Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 21-Aug-2024 17:05:11

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Harekrushna Giri v. State

Case brief

What is this about?

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Harekrushna Giri v. State

Case brief

What is this about?

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