R.S.A.No. 3799 of 2000 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3799 of 2000 (O&M) Date of decision: 12.5.2011 Ramesh Kumar and another ......Appellants Versus Bhagwan Dass Devki Nandan Dharamshala and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.S.C.Chhabra, Advocate, for the appellants. Mr.R.L.Batta, Sr. Advocate with Mr.Nikhil Batta, Advocate, for respondents. **** SABINA, J. Plaintiff-respondent No.1 had filed a suit for possession and the said suit was decreed by the trial Court vide judgment and decree dated 19.5.1998. Appeal filed by defendant Nos. 2 and 3 against the said judgment and decree was dismissed by the District Judge vide judgment and decree dated 1.8.2000. Hence, the present appeal by defendants No.2 and 3. R.S.A.No. 3799 of 2000 (O&M) 2 During the course of arguments learned counsel for the appellants has submitted that before the first Appellate Court, appellant-defendant Ramesh Kumar had moved an application for permission to lead additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (CPC for short). By way of additional evidence, appellant-defendant Ramesh Kumar wanted to prove on record jamabandi for the year 1988-89. Learned senior counsel for the respondents, on the other hand, has submitted that the case was not liable to be remanded back to the first Appellate Court merely because the application under Order 41 Rule 27 CPC had not been decided. The evidence now sought to be led by way of additional evidence was not relevant for the just decision of the case. The substantial question of law that arises in this case is “whether the learned first Appellate Court could have decided the appeal on merits without deciding the application under Order 41 Rule 27 CPC?” In the present case, plaintiff had filed a suit for possession directing the defendants to remove their wooden kiosk, malba and counter being used for running a tea stall over the portion of the land owned by the plaintiff. The case of the defendants was that the plaintiff was neither owner of the property in dispute nor has any concern with the same as the property in dispute belonged to the Board of Phars Mission Harbatreen Church, USA. By way of additional evidence, appellant-defendant Ramesh Kumar wanted to prove on record jamabandi for the year 1988- 89 . Learned first Appellate Court has, however, not decided the R.S.A.No. 3799 of 2000 (O&M) 3 application under Order 41 Rule 27 CPC, while deciding the appeal. It was incumbent on the learned first Appellate Court to have decided the application moved by appellant- defendant Ramesh Kumar under Order 41 Rule 27 CPC along with the main appeal. The substantial question of law that arises in this appeal stands answered accordingly. In these circumstances, this appeal is allowed. The impugned judgment and decree passed by the first Appellate Court dated 1.8.2000 are set aside. The case is remanded back to the first Appellate Court for deciding the same afresh along with the application under Order 41 Rule 27 CPC. Parties are directed to appear before the first Appellate Court on 1.6.2011. (SABINA) JUDGE May 12, 2011 anita