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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DARSHAN SINGH, J.
Abad Gir - Appellant
Versus
Raj Gir and others - Respondents
RSA No.2702 of 2014 (O&M)
Decided on : 01-12-2016
Additional Evidence - Civil Procedure Code - The appellant moved an application for additional evidence under Order 41 Rule 27 CPC before the first appellate Court. The appeal was decided without deciding the application, leading to inherent irregularity and illegality in the impugned judgment. The appellant's appeal was allowed, and the impugned judgment was set aside, with the case remitted to the first appellate Court to decide the appeal afresh along with the application for additional evidence.
Fact of the Case:
The appellant moved an application for additional evidence under Order 41 Rule 27 CPC before the first appellate Court. The appeal was decided without deciding the application, leading to inherent irregularity and illegality in the impugned judgment. The appellant's appeal was allowed, and the impugned judgment was set aside, with the case remitted to the first appellate Court to decide the appeal afresh along with the application for additional evidence.
Finding of the Court:
The fact remains that the appellant moved an application for additional evidence under Order 41 Rule 27 CPC before the first appellate Court. The impugned judgment suffered from inherent irregularity and patent illegality as it was passed without deciding the application for additional evidence. The appellant's appeal was allowed, and the impugned judgment was set aside, with the case remitted to the first appellate Court to decide the appeal afresh along with the application for additional evidence.
Issues: The main issue was the non-decision of the application for additional evidence moved by the appellant before the first appellate Court, leading to inherent irregularity and illegality in the impugned judgment.
Ratio Decidendi: The court found that the impugned judgment suffered from inherent irregularity and patent illegality as it was passed without deciding the application for additional evidence. This led to the allowance of the appellant's appeal and the setting aside of the impugned judgment, with the case remitted to the first appellate Court to decide the appeal afresh along with the application for additional evidence.
Final Decision: The present appeal was allowed, and the impugned judgment dated 02.01.2014 passed by the learned first appellate Court was set aside. The case was remitted to the learned first appellate Court to decide the appeal afresh along with the application moved by the appellant for additional evidence.
Appellant Abad Gir and Shri Tarunveer Vashisth, Advocate have made the joint statement, which is reproduced as under : -
“That all the respondents except respondents No.1 Rajgir and respondent No.2 Dalvindergir are not the necessary parties in this matter and we gave up all other respondents in the present case except respondents No.1 & 2.”
Thus, the remaining respondents, except respondents No.1 & 2, stand given up.
2. Learned counsel for the appellant contended that the appellant has moved an application under Order 41 Rule 27 of the Code of the Civil Procedure, 1908 (for short the “CPC”) before the learned first appellate Court on 23.01.2013. Even the reply to the said application was filed by the opposite party on 15.05.2013, but the appeal has been decided by the learned first appellate Court without deciding the said application for additional evidence. He contended that as the application moved by the appellant has not been decided, the impugned judgment suffers from inherent irregularity and illegality. He relied upon cases Jatinder Singh & Anr. Minor through Mother Vs. Mehar Singh & Ors. 2009(1) CCC 211, Sham Lal & Sons etc. Vs. Rajiv Kumar 2010(2) CCC 216 and Vinod Kumar Mittal Vs. Girdhari Lal Saroa 2010(2) CCC 267.
3. The fact regarding moving the application for additional evidence by the appellant before the first appellate Court and its non-decision could not be disputed by learned counsel for the respondents.
4. Thus, the fact remains that the appellant has moved an application for additional evidence under Order 41 Rule 27 CPC for additional evidence before the first appellate Court on 23.01.2013. Even the reply to that application was filed on 15.05.2013. The perusal of the impugned judgment dated 02.01.2014 passed by the learned first appellate Court shows that the said judgment has been passed without deciding the application for additional evidence moved by the appellant. Thus, the impugned judgment suffers from inherent irregularity and patent illegality. So, the impugned judgment cannot be sustained in the eyes of law. Reference can be made to cases Jatinder Singh & Anr. Minor through Mother Vs. Mehar Singh & Ors. (supra), Sham Lal & Sons etc. Vs. Rajiv Kumar (supra), and Vinod Kumar Mittal Vs. Girdhari Lal Saroa (supra).
5. Thus, in these circumstances, present appeal is hereby allowed. The impugned judgment dated 02.01.2014 passed by the learned first appellate Court is hereby set aside. The case is remitted to the learned first appellate Court to decide the appeal afresh along with the application moved by the appellant for additional evidence.
6. The parties are directed to appear before the learned first appellate Court on 12.01.2017.
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