ONKARMAL Vs. RAMESHWAR

JUDGEMENT

(1.) HEARD learned counsel for both the parties.

(2.) THE plaintiff-appellants filed a suit for permanent injunction and injunction in mandatory form in respect of the disputed `bada' as well as the disputed gate. THE lower court decreed the suit of the plaintiff-appellants in respect of the disputed gate marked as "x". Being aggrieved with the same, an appeal was preferred by defendant Madan Lal before the District & Sessions Judge, Jaipur District, Jaipur, which was transferred for its disposal to the court of Additional Civil Judge & Additional Chief Judicial Magistrate No. 1, Jaipur District, Jaipur, which was registered as Civil Regular Appeal No. 38/1984. THE first appellate Court, vide its judgment dated 5. 3. 1986, allowed the appeal and set aside the judgment and decree dated 30. 3. 1984 passed by the Munsiff & Judicial Magistrate, 1st Class, Chomu, District Jaipur, in Suit No. 19/80. Hence, this second appeal has been preferred by the plaintiff-appellants.

(3.) LEARNED counsel for the plaintiff-appellants contended that the application under Order 41 Rule 27 of the C. P. C. was filed by the defendant before the first appellate Court on 1st February, 1986, whereby two documents i. e. judgment dated 23. 7. 1984 passed by the Assistant Collector, Amer, and copy of the map dated 17. 2. 1965 were filed but the said application was not decided before hearing final arguments of the appeal. He contended that the learned first appellate Court in its judgment has referred and relied upon the aforesaid documents, which were filed along with the application, without deciding the said application. He contended that it was the duty of the first appellate Court to decide the application under Order 41 Rule 27 of the C. P. C. first and in case the application was to be allowed then an opportunity ought to have been given to the opposite-party to file documents in rebuttal, therefore, the learned first appellate court has committed an illegality in not affording an opportunity to the appellant in respect of documents which were filed along with an application under Order 41 Rule 27 of the C. P. C. by defendant and in these circumstances the judgment of the first appellate Court is liable to be set-aside. In support of his contentions, he referred to the decision in Hazarilal vs. Nagar Parishad, Alwar (AIR 1976 Rajasthan 91) = (1975 RLW 561 ). He, therefore, contended that without prejudice to other rights of the appellants to contend on other questions of law formulated in the present case, it will be just and proper as well as in the interest of justice to remand the case to the first appellate Court to decide the application under Order 41 Rule 27 of the C. P. C. first and to re-hear the appeal on merits afresh.