SAKEEL AHMAD Vs. CHANDRAMOHAN

JUDGEMENT

(1.) The petitioners are challenging the order dtd. 8/3/2019 (Annexure P/7) passed by the Additional District Judge, Beohari, District Shahdol in RCSA-36/13, whereby, during pendency of the regular First Appeal, an application under Order 41 Rule 27 of the C.P.C. has been allowed.

(2.) The facts of the case are that petitioners have filed a Civil Suit on 4/5/1999 for declaration and possession in respect of Khasra No.2176 area 0.049 hectares situated in village Beohari District Shahdol and for demolition of the construction made on the said Khasra. They also claimed the relief of injunction. The learned trial court decreed the suit vide judgment and decree dtd. 30/11/2011, against which the respondents/ defendants have filed an appeal before the Court of Additional District Judge, Beohari. During the pendency of the appeal under Sec. 96 of the CPC, the respondents/ defendants filed an application under Order 41 Rule 27 of the CPC. The petitioners/ plaintiffs opposed the said application and filed the reply. The first appellate court allowed the application under Order 41 Rule 27 of the CPC. Hence, the petitioners are before this court in the present writ petition.

(3.) Learned counsel appearing for the petitioners submits that the learned court below has committed palpable error while adjudicating the application under Order 41 rule 27 of the CPC at interlocutory stage. Exercise of such power is wholly illegal and untenable. According to him, the learned court below ought to have heard the appeal on merits and then only should have decided the application filed under Order 41 Rule 27 of CPC and, therefore, interference is sought for. He placed reliance on the decision of Privy Council in the matter of Parsotim thakur vs. Lal Mohar Thakur ILR 1931 page 654., Arjun Singh Vs. Kartar Singh and others AIR 1951 SC 193., Smt. Shankuntala chakraborty Vs. Shiba Prosad Roy and another AI R 1998 Cal 29, Khemchand Mulchand Vs. Government of M.P. and others 1972 MPLJ 524, Suresh Prasad and Others Vs. Ram Krishna and others 2002 (3) MPLJ 208 and Hazi Mohammad Hanif Qureshi Vs. Kailashchand and others 2002(1) MPHT 27 (C.G.).