BHISHAM LAL GARG Vs. HARDEI AND ORS.

JUDGEMENT

(1.) Having regard to the nature of order, this Court proposes to pass, it may not be necessary to take note of the facts of the case, save and except that the plaintiff-appellant, who had lost in both the learned courts below, had preferred an application under Order 41, Rule 27 during the pendency of appeal before learned first Appellate Court, wherein he sought to produce certain documents. Careful perusal of record, as perused by this Court, suggests that the aforesaid application having been preferred by the plaintiff appellant was entertained and time was granted to the opposite party to file reply. Similarly, perusal of order sheet suggests that matter was repeatedly adjourned on the request of respective parties to enable them to complete pleadings in the proceedings arising out of application under Order 41, Rule 27 . However, as a matter of fact, matter was ordered to be heard finally on 15.5.2009 and thereafter, vide judgment dated 22.5.2009, appeal having been preferred by the plaintiff was dismissed without taking note of application under Order 41, Rule 27 .

(2.) Close scrutiny of record made available to this Court clearly suggests that while deciding the main appeal, learned lower appellate Court failed to take note of the application filed under Order 41, Rule 27 as well as documents accompanying the same. This court was unable to find any mention with regard to the pendency of aforesaid application in the impugned judgment. Learned first appellate Court without caring to look into the merits of the aforesaid application, proceeded to decide the appeal in slipshod manner.

(3.) By now, it is well settled that application filed under Order 41, Rule 27 is required to be decided along with the main appeal but as has been observed above, there is no consideration of the application for leading additional evidence by the learned trial Court while passing the final judgment in the appeal having been preferred by the appellant plaintiff. Once an application under Order 41, Rule 27 Civil Procedure Code was filed and thereafter entertained by the first appellate Court, it was incumbent upon the first appellate Court to consider/deal with the same on merits but impugned judgment having been passed by the learned first appellate Court nowhere suggests that above referred application was ever considered by the Court while deciding the main appeal.