JARNEL SINGH Vs. KHUSHI MOHAMMED

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner against the order dated 14.10.2011, whereby, the application filed under Oder 41 Rule 27 CPC has been rejected by the first appellate court.

(2.) IT is submitted by learned counsel for the petitioner that in view of the express provisions of Order 41 Rule 27 CPC, the application could not have been decided by the appellate court during the pendency of the appeal and the same was required to be decided at the time of final hearing of the appeal. In this regard, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr., reported at 2012 DNJ (SC) 742, wherein, the Hon'ble Supreme Court has held as under:-

(3.) IN that view of the matter, the writ petition is allowed. The impugned order dated 14.10.2011 is set aside and the learned appellate court is directed to decide the appeal and the application filed by the petitioner under Order 41 Rule 27 CPC simultaneously. It is made clear that setting aside of the impugned order and remand of the matter to the appellate court for decision of the application under Order 41 Rule 27 CPC afresh alongwith the appeal itself should not be construed as a view of this Court on merits of the matter and appellate court should not be influenced by the order of remand while deciding the application under Order 41 Rule 27 CPC. The application should be decided strictly in conformity within the scope of Order 41 Rule 27 CPC. No costs.