Regular Second Appeal No.382 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.382 of 2008 Date of Decision:- 27.9.2011 Shaukin Singh & Ors. ...Appellants Versus Bishan Singh (since deceased) through his LRs. ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Ms.Satpreet Grewal Kapila, Advocate for the appellants. Mr.Kuldeep Singh Chaudhary, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) Tersenessly, the facts, culminating in the commencement, relevant for deciding the instant regular second appeal and emanating from the record, are that Bishan Singh son of Asa Singh (since deceased), now being represented by his legal representatives, respondent-plaintiffs (for brevity “the original plaintiff”), filed the suit against Shaukin Singh, Nirmal Singh and Sirmour Singh sons of Mehar Singh appellant-defendants (for short “the defendants”), for a decree of possession, by way of partition of the residential houses/property in question. After completion of the codal formalities, the trial Court decreed the suit and passed a preliminary decree for possession to the extent of ½ share of the property in litigation in favour of the original plaintiff, by virtue of impugned judgment and decree dated 13.3.2004. 2. Aggrieved by the decision of the trial Court, the defendants filed the appeal alongwith an application for additional evidence. The Ist Appellate Court, without deciding/touching it, dismissed the main appeal on merits, by means of very cryptic impugned judgment and decree dated 8.10.2007. 3. The appellant-defendants still did not feel satisfied with the Regular Second Appeal No.382 of 2008 -2- impugned judgments and decrees of the Courts below and preferred the present regular second appeal. 4. At the very outset, the learned counsel has vehemently contended that although the appellant-defendants moved the application for additional evidence, but the Ist Appellate Court, without deciding it, has illegally dismissed the main appeal on merits, by way of impugned judgment and decree dated 8.10.2007. The argument is that in this manner, the case of the defendants has been deeply prejudiced in this relevant context. She has placed reliance on the judgments of Hon'ble Supreme Court in cases Hakam Singh v. State of Haryana and Others 2008(4) R.C.R. (Civil) 422 and M/s Eastern Equipment & Sales Ltd. v. ING. Yash Kumar Khanna 2008(4) R.C.R. (Civil) 508. 5. Faced with the situation, the learned counsel for the respondents, LRs of original plaintiff, has very fairly acknowledged the factual matrix, but submitted that since no ground for adducing additional evidence is made out, so, the Ist Appellate Court did not decide the indicated application. 6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, as the impugned judgment and decree of Ist Appellate Court cannot legally be maintained, therefore, the instant appeal deserves to be accepted in this context. 7. As is evident from the record that the appellant-defendants moved the application for additional evidence before the Ist Appellate Court to produce the jamabandi and order dated 4.4.2005 passed by the AC Ist Grade, Dasuya, correcting the shares of the parties, which was implemented in the jamabandi for the year 2001-02 and the Ist Appellate Court passed the following order on 31.7.2006:- “An application for permission to bring on record fard jamabandi for the year 2001-02 and fard badar dated 4.4.2005 corrected by the AC Ist Grade Dasuya, vide order dated 4.4.2005 for disputed khasra number Regular Second Appeal No.382 of 2008 -3- as additional evidence has been filed on behalf of the appellants. For reply to come up on 9.8.06.” 8. On 29.8.2006, the original plaintiff filed the reply to the application for additional evidence and the case was adjourned to 8.9.2006 for consideration. Thereafter, the appeal was repeatedly adjourned, but the Ist Appellate Court, without adhering to/deciding the application, dismissed the main appeal on merits, vide impugned judgment and decree dated 8.10.2007. 9. What cannot possibly be disputed here is that the parties have a statutory right to lead additional evidence and the Ist Appellate Court has the power to allow such additional evidence, inter alia, for any other substantial cause, as envisaged under Order 41 Rule 27 CPC. The Ist Appellate Court was well within its jurisdiction either to allow or to decline the production of additional evidence to a party, as the case may be. But dismissing the main appeal on merits, without deciding the application for additional evidence has naturally resulted in miscarriage of justice to the case of appellant-defendants and renders the impugned judgment and decree, as illegal. 10. As to whether the defendants were entitled to lead additional evidence or not, is a matter to be decided by the Ist Appellate Court, but the appeal cannot legally be decided on merits, without deciding the application for additional evidence. The law laid down by Hon'ble Apex Court in Hakam Singh and M/s Eastern Equipment & Sales Ltd.'s cases (supra) “mutatis mutandis” is applicable to the facts of this case and is the complete answer to the problem in hand. Thus, the impugned judgment and decree cannot legally be maintained, in the obtaining circumstances of the case. Therefore, to me, it would be in the interest and justice would be sub-served, if the matter is remanded back to the first Appellate Court in this relevant connection. 11. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the main Ist appeal, the instant appeal is accepted. Consequently, the Regular Second Appeal No.382 of 2008 -4- impugned judgment and decree dated 8.10.2007 are hereby set aside. The matter is remitted back, with a direction to the concerned Ist Appellate Court, first to decide the application for additional evidence filed by the defendants and then to decide the main appeal on merits, in accordance with law. 12. The parties through their counsel are directed to appear before the concerned first Appellate Court on 1.12.2011, for further proceedings. 13. Needless to state here that, nothing observed hereinbefore would reflect, in any manner, on the merits of the case, as the same has been so recorded for a limited purpose of deciding the present controversy only. 27.9.2011 (MEHINDER SINGH SULLAR) AS JUDGE Whether to be referred to reporter? Yes/No