Allowed

Prem Chand and Ors. v. Gheesi Bai and Ors.

Rajasthan HC3 Mar 2011CSA/204/2009

Case brief

AI extract

What is this about?

In a civil second appeal regarding tenancy and ejectment, the High Court allowed the appeal, set aside the first appellate court's judgment and decree, and remanded the case. The remand was ordered because the courts below failed to dispose of an application for additional evidence under Order 41 Rule 27 CPC filed during the appeal proceedings.

What did the court decide?

The appeal is accepted, the judgment and decree dated 07.02.2009 of the First Appellate Court are set aside, and the matter is remanded for decision of the applications under Order 41 Rule 27 CPC and

Prem Chand and Ors. Vs Gheesi Bai and Ors. — Civil Procedure and Limitation | Rajasthan HC (2011)

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [1]

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH

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S.B. Civil Second Appeal No.204/2009

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Prem Chand & Ors. Versus Ghisi Bai & Ors. DATE OF JUDGMENT : 03/03/2011

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HON'BLE MR.JUSTICE S.S.KOTHARI

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Mr. R.K. Agrawal, for appellants Mr. R.P. Garg ] for respondents Mr. S.C. Mittal ] ********

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The facts leading to this appeal are that the respondent no.1, the plaintiff, filed suit against the appellants and the respondent nos.2 to 5 alleging therein that Shop No.2, situated at Main Road, Bhimganjmandi, Kota, belonging to the plaintiff, was taken on rent by the father of the defendants, Sh.Jagan Nath, on a monthly rent of Rs.30/- and after his death on 22.07.1971, the defendants are in possession of the same. The tenancy was monthly and the defendants have not paid rent since 10.03.1978 for 36 months amounting to Rs.1080/-. Therefore, being defaulters, they are liable to ejectment. The plaintiff prayed for a decree of ejectment and arrears of rent. The defendant nos.1 to 7 filed a joint written statement denying the ownership of the plaintiff and alleged that the rent of the shop was fixed at Rs.22/- per month during the time of Sh.Jagan Nath and it is still the same. One son and a daughter of late Sh.Jagan Nath have not been made a party in the suit. The father of the defendants, Sh.Jagan

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [2]

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Nath, was tenant of Sh.Daulat Ram, the husband of the plaintiff, since Vaisakh Sudi 1 Samvat 2020, and of Kailash Chandra Jain Saraf since 03.04.1965 and, after his death, of Kailash Chand. It is wrong to say that he has not paid rent for the last four years as rent was paid from 03.04.1965 to 03.04.1966 to Kailash Chandra. No rent has been paid to the plaintiff as she is not entitled to it. A notice was received from the plaintiff in 1966 for paying rent on which payment of rent was stopped to Kailash Chandra also. Kailash Chandra filed suit against the father of the defendants for recovery of rent which was decreed by two courts. The plaintiff had full knowledge of the sale of the shop to Kailash Chandra Saraf and his mother, Pushpa Bai, since 03.04.1965 but she had not filed any suit for getting the sale deed declared illegal. The possession of the defendants has become adverse against the plaintiff and as such, the suit is liable to be dismissed. On the pleadings of the parties, the learned Trial Court framed seven issues. After recording the evidence of the parties and hearing them, the suit was decreed on 19.07.2002. The appellants challenged the said judgment and decree by fling an appeal. After hearing the parties, the learned First Appellate Court dismissed the appeal by judgment and decree dated 07.02.2009. Hence, the appellants have challenged the aforesaid judgments and decrees by filing this second appeal.

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I have heard the learned counsel for the parties at

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [3]

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great length.

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The learned counsel for the appellants has vehemently contended that the learned First Appellate Court has not decided the applications submitted by the appellants under Order 41 Rule 27 CPC alongwith documents as well as some other applications which were very material. He has further contended that arguments were heard on the applications, but no order accepting or rejecting them has been passed and as such, the impugned judgment is illegal. The learned counsel for the appellants also submitted detailed arguments in support of other substantial questions of law framed in the memorandum of appeal. The learned counsel for the appellants drew my attention to the judgments in the case of Harju Vs. Phulari reported at (2005) 10 SCC 191; Pothina Narasamma V. Marupiaa Ammaji & others reported at (2006) 9 SCC 709 and North Eastern Railway Administration, Gorakhpur Vs. Bhagwan Das reported at (2008) 8 SCC 511.

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The learned counsel for the respondent no.1 has strenuously contended that even if the learned First Appellate Court has not passed any specific order on the applications submitted under Order 41 Rule 27 CPC, it does not make the impugned judgment illegal as this Hon'ble Court can consider those applications and the documents at this stage also. He has placed reliance in the case of Sohan Singh Vs. Gurmej Singh and others reported at VOL. CXXXII (2002-03) The

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [4]

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Punjab Law Reporter 329. He has also contended that the appellants being tenants cannot deny the plaintiff her title. He has also submitted that both the courts below have concurrently decided the case against the appellants and no substantial question of law is involved in the appeal, hence it deserves to be dismissed.

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I have considered the submission made by the learned Counsel for the parties and gone through the record of both the courts carefully.

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A perusal of the file of Appellate Court shows that the appellants submitted an application under Order 41 Rule 27 CPC on 28.02.2006 and its reply was filed on behalf of the respondent no.1 on 09.03.2006. However, there is nothing in the order-sheets of the file to show whether the parties were heard on it or not. The appellants submitted another application under Order 41 Rule 27 CPC along with documents on 24.01.2009 during the course of arguments of appeal and it was submitted on behalf of the respondent no.1 that no reply of the application is to be filed. A perusal of the order-sheet dated 24.01.2009 also shows that the arguments on the application and appeal were heard on 24.01.2009 and the appeal was adjourned to 07.02.2009 for pronouncing judgment. Admittedly, no separate order deciding applications under Order 41 Rule 27 CPC was passed on 07.02.2009. A perusal of the impugned judgment also shows that there is no

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [5]

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mention either about the aforesaid applications nor of the decision of the Court on the applications contained in it. It may be added here that the learned counsel for the appellants did not point out any other application submitted by the appellants which remained undecided. In the circumstances, I have to consider whether the impugned judgment is legally correct and deserves to be sustained.

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The Hon'ble Apex Court in the case of Harju (supra) considered the facts that in second appeal before the High Court an application under Order 41 Rule 27 CPC filed by the appellant seeking to produce a Sale Deed and a Patta of the property in his favour, without deciding said application affirmed the view taken by the First Appellate Court. The Hon'ble Apex Court held that the High Court erred in doing so as it should have disposed of the application either by rejecting it or allowing it before deciding the appeal. In case of Pothina (supra), the application of the appellant under Order 41 Rule 27 CPC was not disposed of while deciding the appeal by the Appellate Court and High Court dismissed the second appeal in limine without adverting to that aspect in spite of appellant's grievance. The Hon'ble Apex Court set aside the impugned order of the High Court and remanded the matter to the District Judge. In the case of North Eastern Railway (supra), the Hon'ble Apex Court has held that the High Court was bound to consider the

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [6]

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application under Order 41 Rule 27 CPC before taking up the appeal on merits. Thus, the aforesaid judgments support the contention raised by the learned counsel for the appellant. In the case of Sohan Singh (supra), it is mentioned that “Perusal of the record reveals that the application for additional evidence under Order 41 Rule 27 CPC was filed by the plaintiffs-appellants on 05.11.1981, when the appeal was fixed for hearing. It was not filed along with the appeal, which was filed on 05.05.1979. Reply to the said application was filed by the contesting defendants-respondents on 24.11.1981 and on that date, it was ordered that the application shall be disposed of along with the main appeal. The main appeal was decided on 05.01.1982. It also appears from the record that no separate order has been passed on the said application at the time of final disposal of the appeal. In the judgment, no reference of the said application has been made. It appears that the application for additional evidence was not pressed and no argument was raised on that application at the time of final arguments and perhaps for these reasons, no order was passed on the said application and the same was not referred to in the judgment. In the grounds of appeal before this Court also, the plaintiffs-appellants did not state that this application was pressed and argued before the learned First Appellate Court at the time of final arguments and in spite of that no order was passed on their application. In these circumstances, it

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [7]

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will not be appropriate for this Court to accept the contention of the learned counsel and remand the matter to the First Appellate Court after setting aside the judgment and decree. I am of the view that instead of remanding the case to the First Appellate Court and to compel the parties to face further agony of years for final determination of their dispute, it will be more appropriate if this Court considers their application for additional evidence filed by the plaintiffs-appellants and take a decision whether they are entitled to lead additional evidence and whether the proposed additional evidence is necessary for the just and proper adjudication of the matter”.

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I have carefully examined the facts and discussion, as quoted above, and feel that the facts of the present appeal are not identical to the facts of Sohan Singh's case (supra) and this case does not support the contention of the learned Counsel for the respondent no.1. In view of the clear principles of law laid down in the aforesaid cases by the Hon'ble Apex Court, I do not agree with the contention of the learned counsel for the respondent no.1 that I should consider the applications under Order 41 Rule 27 CPC and examine the documents submitted with them for the purposes of deciding this appeal.

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Having regard to the aforesaid conclusion reached by me, it is not necessary for me to consider other contentions raised by the parties as the appeal

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SB Civil Second Appeal No.204/2009 Prem Chand & Ors. Vs. Ghisi Bai & Ors. [8]

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deserves to be allowed on the first contention alone. Hence, the appeal of the appellant is accepted and the judgment and decree dated 07.02.2009 of the First Appellate Court are set aside and the appeal is remanded for decision of the aforesaid two applications and the appeal in accordance with law. As per the provisions of Order 41 Rule 26A CPC, the parties are directed to appear before the First Appellate Court on 02.04.2011 and the learned First Appellate Court is expected to decide the appeal within a period of three months thereafter.

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As the appeal is being allowed and the matter has been remanded, the stay application is disposed of as infructuous.

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[S.S.KOTHARI], J.

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FRBOHRA204CSA2009.doc

Prem Chand and Ors. v. Gheesi Bai and Ors.

Case brief

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Prem Chand and Ors. v. Gheesi Bai and Ors.

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