JUDGMENT :

Vikas Bahl, J. (Oral) 

The present Regular Second Appeal has been filed by the defendant (presently through his LRs) against the judgment and decree dated 07.09.1987 whereby the suit filed by the respondents for possession of land measuring 37 kanals 8 marlas has been decreed along with the relief for recovery of Rs.9850/-. Challenge is also to the judgment and decree dated 16.03.1992 vide which the appeal filed by the present appellant has been dismissed. The present appeal has been filed under Section 41 of the Punjab Courts Act, 1918.

2. Learned counsel for the appellant has raised a preliminary point for allowing the present appeal. It is submitted that the present appellant had filed an application dated 19.03.1990 under Order 41 Rule 27 CPC for producing on record additional evidence / documents which included copy of the Central Government order directing the applicant to deposit the previous rent, in the treasury and to cultivate the land in suit in future on rent along with other important documents. It is submitted that although reply was filed to the said application but the application had not been decided by the Ist Appellate Court while dismissing the appeal filed by the appellant vide judgment and decree dated 16.03.1992. Reference has been made to the zimni orders passed by the Ist Appellate Court to show that the said application has not been considered much less decided. It is further submitted that even a perusal of the judgment of the Ist Appellate Court would show that no reference has been made to the said application and the appeal of the appellant has been dismissed without considering the said application. It is argued that the documents sought to be produced were material documents and thus, non-adjudication of the application under Order 41 Rule 27 CPC amounts to miscarriage of justice and on the said short point alone, the present appeal deserves to be allowed and the matter deserves to be remanded back. In support of his arguments, learned counsel for the appellant has relied upon the judgments of the Hon'ble Supreme Court in the case of Satish Chand Surana vs. Raj Kumar Meshram reported as 2021 SCC OnLine SC 3446; Hakam Singh vs. State of Haryana and Others reported as 2008(4) R.C.R. (Civil) 422; M/s Eastern Equipment & Sales Ltd. vs. ING. Yash Kumar Khanna reported as 2008 (12) SCC 739; and judgment of the Coordinate Bench of this Court in the case of Shaukin Singh and others vs. Bishan Singh (since deceased) through his L.Rs. reported as 2011 AIR (Punjab and Haryana) 189 and also another judgment of the Coordinate Bench of this Court in the case of Food Corporation of India and another vs. M/s Joginder Singh Varinder Kumar reported as 2023(2) Law Herald 1374.

3. Learned counsel for respondent no.1 has submitted that the appeal has been rightly dismissed by the Ist Appellate Court and the same does not call for any interference. The factum of filing of the application and non-adjudication of the same, however, could not be disputed.

4. This Court has heard the learned counsel for the parties and has perused the paper book and the record of the case.

5. The substantial question of law which arises for consideration in the present case is:-

'Whether the judgment of the Ist Appellate Court is sustainable in view of the fact that the application under Order 41 Rule 27 CPC filed by the present appellant during the pendency of the first appeal, has not been decided by the Ist Appellate Court.'

6. Before considering the legal aspects, it would be relevant to briefly note the facts of the present case. Respondents no.1 to 5 (hereinafter referred to as 'the plaintiffs') filed a suit against the defendant-present appellant (presently represented by his LRs) for possession of land measuring 37 kanals 8 marlas comprised in khasra nos.11/11/1, 12, 10, 1 (17)(8-0)(8-0)(7-3) and 12/16, 25/1 (8-0) (4-18) khewat khatawni nos. 2 min/9, 6/24, 6/29, 8 min /35 17 min/51 according to jamabandi for the year 1975-76