SANJIVGOEL Vs. AVTAR S. SANDHU

JUDGEMENT

(1.) The respondent (Avtar S. Sandhu) had filed a suit on 1.12.1989 for dissolution of a partnership firm known as M/s. Bharat Engineering Works, N.G. Road, Jalandhar, Punjab. In the said suit, a preliminary decree was passed by the trial court on 21.05.1993 dissolving the said partnership firm with effect from 22.12.1989 holding that Sanjiv Goel (the appellant herein) will have to render accounts of the firm from 1.05.1989 when the business of the firm had started. A Local Commissioner had been appointed to go into the accounts. Against this preliminary decree passed by the trial court, the appellant filed an appeal before the Additional District Judge, Jalandhar. During the pendency of the appeal, the appellant in the appeal i.e. Sanjiv Goel, filed an application under Or. 41 R. 27 of the Code of Civil Procedure for permission of the court to adduce further evidence in the case. The respondent filed a reply to the said application opposing the same. However, it is the case of the appellant herein that the appeal pending before the Additional District Judge, Jalandhar was disposed of without any order being passed on the application of the appellant under Or. 41 R. 27 of the Code of Civil Procedure. This fact that no order was passed on the said application by the said court while disposing of the appeal is not disputed by the learned counsel appearing for the respondent-plaintiff. The appeal was dismissed by the Additional District Judge vide his judgment dated 22.07.1997. The second appeal was filed against the judgment of the learned Additional District Judge by the appellant. We have been taken through the grounds of appeal before the High Court in the second appeal and we find that the appellant had taken a ground before the High Court about his application under Or. 41 R. 27 having not been disposed of by the Additional District Judge before passing the final judgment in the appeal pending before him. In spite of a grievance having been made about the non-disposal of the application under Or. 41 R. 27, the High Court by its impugned judgment dated 13.11.1997 dismissed the appeal in limine without adverting to this aspect. There is no mention about the grievance of the appellant about his application under Or. 41 R. 27 having not been disposed of in the order of the High Court.

(2.) In the present appeal, at the outset, the learned counsel for the appellant brought to our notice the fact that an application under Or. 41 R. 27 Code of Civil Procedure filed by the appellant before the learned Additional District Judge has remained pending throughout as no orders were passed on the said application by the learned Additional District Judge or by the High Court. The learned counsel appearing for the respondent is unable to dispute this fact that the said application has not been disposed of so far. Without expressing any opinion on the merits of the claim of the appellant in his application under Or. 41 R. 27 Code of Civil Procedure we are of the view that the said application ought to have been disposed of by the learned Additional District Judge before deciding the appeal which was pending before him. Non-disposal of the said application has led to the miscarriage of justice. Accordingly, we set aside the impugned judgment of the High Court as well as the judgment dated 22.07.1997 of the learned Additional District Judge, Jalandhar and remand the matter back to the District Judge, Jalandhar for assigning the case to an appropriate court for decision of the appeal as well as the application of the appellant under Or. 41 R. 27 Code of Civil Procedure on merits in accordance with law. This appeal is disposed of accordingly. The parties to bear their own costs.