Omission to decide the application under Order 41 Rule 27 CPC resulted in miscarriage of justice and rendered the impugned judgment and decree legally unsustainable, leading to the allowance of the appeal and remand of the case for fresh disposal.

Dharam Chand Chaudhary, J.

In this appeal, judgment and decree dated 28.6.2017 passed by learned Addl. District Judge (III), Kangra at Dharamshala in Civil Appeal No. 90-D/XIII/2011 is under challenge. It is seen that learned Civil Judge (Sr. Divn.) Kangra at Dharamshala vide judgment dated 30.9.2011 has dismissed the suit filed by the appellant herein for the decree of specific performance of the contract. Learned lower appellate Court has dismissed the appeal and affirmed the judgment and decree passed by learned trial Court.

2. The plaintiff, appellant herein has assailed the impugned judgment and decree on several grounds, including that an application under Order 41 Rule 27 CPC filed in the lower appellate Court with a prayer to allow him to produce additional evidence irrespective of remained listed for consideration on different dates, ultimately omitted to be considered and decided resulting into miscarriage of justice to him. Though, the grounds of appeal discloses other substantial questions of law also, however, learned counsel representing the appellant-plaintiff has urged that omission on the part of learned lower appellate Court to decide the application under Order 41 Rule 27 CPC has vitiated the findings recorded and on reversal of the impugned judgment and decree, the case may be remanded to learned lower appellate Court for disposal afresh in accordance with law and after consideration and decision on the pending application.

3. This Court is in agreement with the submission so made because the omission on the part of learned lower appellate Court to decide the application has certainly resulted in miscarriage of justice to the appellant-plaintiff and the impugned judgment and decree is also not legally sustainable. Learned counsel representing the respondents-defendants have also not brought anything to the contrary to the notice of this Court and rightly so because the question of law and facts involved in the appeal could have not been adjudicated authoritatively without the application under Order 41 Rule 27 CPC considered and decided on merits.

4. In view of what has been said hereinabove, this appeal is allowed. Consequently, the impugned judgment and decree is quashed and set aside and the case is remanded to learned lower appellate Court for disposal afresh in accordance with law after taking into consideration the application filed under Order 41 Rule 27 CPC within three months from today. The parties, through learned counsel representing them, are directed to appear before learned lower appellate Court on 10.12.2018.

The appeal and the pending applications, if any, shall also stand disposed of accordingly.