Allowed

Smt. Sushila Jain Wife of Late Shri Rajkumar Jain, v. Shri Babulal Kumawat Son of Shri Mangilal

Rajasthan HC12 Dec 2019CSA/31/2019

Case brief

AI extract

What is this about?

In this civil second appeal concerning an injunction suit dismissed for lack of evidence, the High Court held that the appellate court failed to decide an unaddressed application for additional evidence under Order 41 Rule 27 CPC. Consequently, the impugned judgment was set aside and the matter remanded.

What did the court decide?

Second appeal allowed; judgment of the Appellate Court set aside; matter remanded to the Appellate Court to decide afresh along with the application under Order 41 Rule 27 CPC.

Smt. Sushila Jain Wife of Late Shri… — Civil Procedure and Limitation | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Second Appeal No. 31/2019

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Smt. Sushila Jain Wife Of Late Shri Rajkumar Jain, Aged About 64 Years, By Caste Jain, Resident Of House No. 108, Janakpuri-I, Imliwala Phatak, Jaipur

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----Appellant

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Versus

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Shri Babulal Kumawat Son Of Shri Mangilal, By Caste Kumawat, Resident Of House No. 115, Janakpuri-I, Imliwala Phatak, Jaipur

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Jaipur Nagar Nigam, Jaipur, Through Commissioner, Civil Line Zone, Nagar Nigam, Jaipur, Lalkothi, Jaipur

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----Respondents

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For Appellant(s) : Mr. Manoj Bhardwaj For Respondent(s) : Mr. Vinod Kumar Sharma

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HON'BLE MR. JUSTICE PRAKASH GUPTA

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Order

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12/12/2019

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Instant second appeal has been preferred against the judgment and decree dated 25.09.2018 passed by Additional District and Sessions Judge No.7, Jaipur Metropolitan, Jaipur (hereinafter referred to as the “Appellate Court”) in Civil Regular Appeal No.03/2013 whereby the Appellate Court dismissed the appeal and confirmed the judgment and decree dated 23.01.2013 passed by Additional Civil Judge (J.D.) No.4, Jaipur Metropolitan, Jaipur (hereinafter referred to as the “trial Court”) in Civil Suit No.285/2005.

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Brief Facts giving rise to the present appeal are that the appellant-plaintiff (hereinafter referred to as “the plaintiff”) filed a

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(2 of 4)

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[CSA-31/2019]

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suit for permanent injunction against the respondents-defendants (hereinafter referred to as “the defendants”). The suit of the plaintiff was dismissed by the trial Court vide judgment dated 23.01.2013 for the reason that the plaintiff did not produce any evidence which could show that any complaint was made by her to the Nagar Nigam with regard to illegal construction being raised by the defendant no.1. The Trial Court also dismissed the plaintiff’s suit for the reason that she failed to prove that on 6.10.2005 any construction was raised by the defendant no.1 in the set back of the disputed property and thereafter also the construction work was done by the defendant no.1.

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Being aggrieved by the same, the plaintiff preferred an appeal before the Appellate Court which also came to be dismissed vide judgment dated 25.09.2018. The plaintiff therefore, has filed the present second appeal.

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It is submitted by learned counsel Shri Manoj Bhardwaj appearing for the plaintiff that an application under Order 41 Rule 27 CPC read with Section 151 CPC was filed before the Appellate Court but the said application has not been decided by the Appellate Court. Therefore, only on this ground, the judgment and decree of the Appellate Court is liable to be set aside and the matter should be remanded to the Appellate Court.

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On the other hand, learned counsel for the respondents Shri Vinod Kumar Sharma fairly admits that the application filed by the plaintiff under Order 41 Rule 27 read with Section 151 CPC before the Appellate Court has not been disposed of by the

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(3 of 4)

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[CSA-31/2019]

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Appellate Court. Therefore, he has no objection in remanding the matter to the Appellate Court for a decision afresh.

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Heard learned counsel for the parties and perused the material available on record.

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Having regard to the submissions made by learned counsel for the parties, I am satisfied that in this appeal following substantial question of law is involved:

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“Whether the appellate court was right in not deciding the application filed by the appellant under Order 41 Rule 27 CPC?”

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It is not in dispute that an application under Order 41

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Rule 27 CPC was filed by the appellant before the Appellate Court and the same has not been decided by the first Appellate Court.

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In Hakam Singh & Anr. Vs. State of Haryana & Ors.: AIR 2008 SC 2990 , Hon’ble Apex Court has observed as under:-

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“That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the case to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE”.

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In Jatinder Singh and Another Vs. Mehar Singh

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and Others: (2009) 17 SCC page 465 Hon’ble Apex Court in para No.4 has observed as under:-

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“While deciding the second appeal, however, the High Court had failed to take notice of the application under order 41 Rule 27 of the Code of Civil Procedure and

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(4 of 4)

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[CSA-31/2019]

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decide whether additional evidence could be permitted to be admitted into evidence. In our view, when an application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure was filed by the appellants, it was the duty of the High Court to deal with the same on merits. That being the admitted position, we have no other alternative but to set aside the judgment of the High Court and remit the appeal back to it for a decision afresh in the second appeal along with the application for acceptance of additional evidence in accordance with law.”

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In the light of aforesaid, substantial question of law is decided. The impugned judgment passed by the Appellate Court is set aside and the matter is liable to be remitted back to the Appellate Court for a decision afresh.

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Resultantly, the appeal is allowed and the judgment and decree dated 25.09.2018 passed by the Appellate Court in appeal No.03/2013 is set aside and the matter is remitted back to the Appellate Court to decide it afresh on merits along with the application under Order 41 Rule 27 C.P.C. in accordance with law. The parties are directed to remain present before the "Appellate Court" on 20.01.2020.

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The Appellate Court is directed to decide the appeal expeditiously but not later than two months from the date of receipt of certified copy of this judgment.

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The office is directed to send back the record alongwith a copy of this order, forthwith.

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(PRAKASH GUPTA),J

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Mohit57

Smt. Sushila Jain Wife of Late Shri Rajkumar Jain, v. Shri Babulal Kumawat Son of Shri Mangilal

Case brief

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Smt. Sushila Jain Wife of Late Shri Rajkumar Jain, v. Shri Babulal Kumawat Son of Shri Mangilal

Case brief

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What did the court decide?

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