H MURALI Vs. A R SEYAD MARIAM

JUDGEMENT

(1.) THE plaintiffs 2 to 4 are the appellants, who have filed the suit for declaration that the defendants 1 to 3 have only life interest in the suit property bearing Door No. 78 Old No. 158, Coral Merchant Street, muthialpet, Madras, and thereafter, it shall vest with the plaintiffs absolutely and for a consequential permanent injunction and the second appeal is filed by them having failed in both the Courts below. Pending the first appeal it is true that the said plaintiffs have filed in I. A. No. 874 of 2000 for receipt of deed of revocation of settlement dated 21. 05. 1969 marked as Ex. A. 5 in the appellate stage, the appellate court dismissed the application on the basis that the said document is not maintainable in law.

(2.) ONE of the main contentions raised by the learned counsel for the appellants / plaintiffs is as to the correctness of the dismissal of I. A. No. 874 of 2000 filed by the plaintiffs / appellants before the first Appellate court for receipt of additional evidence, while disposing of the appeal with reference to Order 41 Rule 27 C. P. C. The additional document sought to be filed is stated to be a deed of revocation of settlement dated 21. 05. 1969 by which one Girija Bai Ammal, who has as earlier executed a settlement deed dated 15. 07. 1964 marked as Ex. A. 1 stated to have cancelled the said Ex. A. 1. It is true that the Trial Court while dealing with that aspect has stated that the said revocation deed dated 21. 05. 1969 was not produced but nevertheless has held even at the time of rendering the judgement that the said girija Bai Ammal is not legally entitled to execute such revocation deed dated 21. 05. 1969 since her earlier settlement deed dated 15. 07. 1964 marked Ex. A. 1 cannot be revoked.

(3.) THE learned counsel appearing for the appellant also would rely upon the judgement of the Hon"ble Apex Court rendered in sanjiv Goel Vs. Avtar S. Sandhu reported in 2006 (9) SCC 748 to contend that when such application for additional evidence was pending, without disposing of the same, the appeal was disposed by dismissing the same and the same is against order 41 Rule 27 and 28 of C. P. C. That was the case wherein an application under Order 41 Rule 27 remained not disposed while the first appellate court has dismissed the appeal even before that. THE Hon"ble Apex court has set aside the orders of the first appellate court as well as the High Court and remanded the matter back to the District Judge to decide the appeal as well as the application filed under Order 41 Rule 27 C. P. C. , in the following operative portion: "2. In the present appeal, at the outset, the learned counsel for the appellant brought to our notice the fact that an application under Order 41 Rule 27 CPC 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 Order 41 Rule 27 CPC 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 judgment of the High Court as well as the judgment dated 22. 07. 1997 of the 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 Order 41 Rule 27 CPC on merits in accordance with law. This appeal is disposed of accordingly. THE parties to bear their own costs. "