This is plaintiff’s second appeal filed under Section 100 of Code of Civil Procedure challenging the judgment and decree dated 30.10.2014, passed by the Presiding Officer, Fast Track Court-I and Addl. District and Sessions Judge, Belgaum, Itineration at Khanapur (‘the first appellate Court’ for short) in R.A.No.424/2010, whereby the judgment and decree dated 30.11.2010 passed by the Senior Civil Judge, Khanapur (‘the trial Court’ for short) in O.S.No.126/2008 is confirmed.

2. For the sake of convenience, the parties are referred to as per their status before the trial court.

3. Plaintiff preferred O.S.No.10/2002 against the defendant initially in the Court of Civil Judge (Jr.Dn.), Khanapur for the relief of declaration and consequential relief of permanent injunction. The Civil Judge (Jr.Dn.), Khanapur returned the plaint for its presentation before the competent Court for want of pecuniary jurisdiction. Hence, the plaint was presented before the trial Court and got renumbered as O.S.No.153/2005. The Civil Judge (Jr.Dn.), Khanapur had recorded the evidence of witnesses PW1 and DW1. At the evidence stage, the plaint was returned to present the same before the competent Court. After return of plaint, the defendant did not examine any witnesses whereas plaintiff examined two witnesses as PW2 and PW3. The trial Court by judgment and decree dated 30.11.2010 dismissed the suit. Plaintiff being aggrieved by the same, preferred appeal before the first appellate Court in R.A.No.424/2010, which came to be dismissed. Hence, this second appeal.

4. This Court has admitted this second appeal on 05.07.2017 to consider the following substantial questions of law:-

i. Whether the First Appellate Court has committed an error in law in not considering the application filed under Order XLI Rule 27 C.P.C. for production of additional evidence?

ii. Whether the Courts below have failed to raise a presumption with regard to adoption of plaintiff under Section 16 of the Hindu Adoption and Maintenance Act, 1956, in the circumstances that the plaintiffs’ evidence stood unrebutted for the reason that the first defendant did not enter witness box and that DW1, son-in-law of the first defendant did not tender himself for cross-examination?

5. The main argument of the learned counsel appearing for the plaintiff/appellant is that while deciding the first appeal, the first appellate Court failed to take notice of the application I.A.No.3 filed by the plaintiff under Order XLI Rule 27 of C.P.C. and there being no decision taken on this application, the appeal filed by the plaintiff came to be dismissed on merits. This appeal requires to be decided on this very short question without going into the second question, since the decision not being taken by the first appellate Court on this application filed under Order XLI Rule 27 of C.P.C. for acceptance of additional evidence which is not disputed by the respondent. Learned counsel for the appellant has placed reliance on the judgment of the Hon’ble Apex Court in the case of Jatinder Singh and another (minor through mother) V/s Mehar Singh and others with Balbir Singh and another Vs. Jatinder Singh and another, reported in AIR 2009 SC 354, to support his contention that the judgment and decree passed by the first appellate Court without considering the application and passing any order on the said application is bad-in-law and the same requires to be set aside.

6. In view of the submissions of the learned counsel appearing for the parties and perusing the material on record, it is apparent that the first appellate Court has not passed any orders on an application filed under Order XLI Rule 27 of C.P.C. i.e. I.A.No.3 for acceptance of additional evidence. It was obligatory on the part of the first appellate Court to deal with the application on merits and then to decide the appeal. That being the settled legal principle, this Court has no other alternative to set aside the judgment of the first appellate Court a