R.S.A.No. 4380 of 2008 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4380 of 2008 Date of decision: 5.5.2011 Roop Singh and others ......Appellants Versus Sardara Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.M.G.Bagga, Advocate, for the appellants. Mr.Mahavir Sandhu, Advocate for respondents. **** SABINA, J. The plaintiffs had filed a suit for declaration and the said suit was dismissed by the Civil Judge (Sr.Divn.) vide judgment and decree dated 23.3.2006. Appeal filed by the plaintiffs against the said judgment and decree was dismissed by Additional District Judge vide judgment and decree dated 25.8.2008. Hence, the present appeal by the plaintiffs. During the course of arguments learned counsel for the R.S.A.No. 4380 of 2008 2 appellants has submitted that before the first Appellate Court, the plaintiffs 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 an additional evidence, plaintiffs wanted to place on record the judgment passed by Additional District Judge (Fast Track Court) Ambala dated 15.1.2008 passed in Civil Appeal No.107 of 2005. In support of his arguments, learned counsel for the appellants has placed reliance on Ashok Kumar vs Surinder Kumar AIR 2005 P&H 263, wherein, in para 7, it was held as under:- "As referred to above, the defendant appellant had filed an application under Order 41 Rule 27 CPC for production of additional evidence during the pendency of the appeal. Notice in the said application was given to the other side, who had filed the reply and the case was fixed for arguments in the main appeal as also on the application for additional evidence. However, without deciding the application for additional evidence, learned Additional District Judge proceeded to dismiss the appeal filed by the defendant appellant. Under these circumstances, in my opinion, the decision of the appeal without deciding the application for additional evidence has resulted in miscarriage of justice. In my opinion, it was the duty of the lower appellate Court to have decided the application for additional evidence and could not have decided the appeal without deciding the aforesaid application for additional evidence." R.S.A.No. 4380 of 2008 3 Learned 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, plaintiffs had filed a suit for declaration claiming share in shamlat land in proportionate to their original khewats plus the land purchased by them. By way of additional evidence, plaintiffs wanted to place on record the decision given by the Additional District Judge (Fast Track Court ) vide judgment and decree dated 15.1.2008. Learned first Appellate Court has, however, not decided the 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 the appellants 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 25.8.2008 are set aside. The case is remanded back to the first Appellate Court for deciding the same afresh in accordance with law along with the R.S.A.No. 4380 of 2008 4 application under Order 41 Rule 27 CPC. Parties are directed to appear before the first Appellate Court on 1.6.2011. (SABINA) JUDGE May 05, 2011 anita