RSA No.2917 of 2008(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.2917 of 2008(O&M) DATE OF DECISION: 27.07.2010 **** Ajit Singh . . . . Appellant VS. Kuldip singh . . . . Respondent **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Amit Jain, Advocate for the appellant. Mr.B.R. Gupta, Advocate for the respondent. **** RAKESH KUMAR JAIN J. (ORAL) When notice of motion was issued on 16.01.2009, following contention of the learned counsel for the appellant was noticed: “Learned counsel for the appellant contends that the learned lower appellate Court did not decide the application moved by the appellant for leading additional evidence while disposing of the appeal. Notice of motion for 24.3.2009.” On 17.12.2009, following order was recorded: - RSA No.2917 of 2008(O&M) -2- “Counsel for the defendant-appellant, inter alia, contends that suit of the plaintiff for permanent injunction was decreed against which the appeal was filed and in the appeal, an application for additional evidence was filed in order to place on record a family settlement. The learned lower Appellate Court set aside the judgment and decree of the trial Court and remanded it back for the purpose of taking additional evidence. The said order was challenged by the plaintiff before this Court by way of Revision No.1918 of 1994 which was allowed vide order dated 9.7.2003 with a direction that “the learned first Appellate Court is directed to hear the arguments and come to a final decision regarding all aspects of the appeal and the applications which were filed before the appellate Court during the pendency of the appeal.” It is submitted by the counsel for the appellant that despite the specific order passed by this Court on 9.7.2003, the learned lower appellate Court before dismissing his appeal did not decide the application filed under Order 41 Rule 27 CPC for additional evidence. Registry is directed to summon the record through fax by the lower Appellate Court on or before 14.1.2010.” On 14.1.2010, following order was recorded: - RSA No.2917 of 2008(O&M) -3- “Record has been received. Learned counsel for the parties pray for time to inspect the same. On their request, adjourned to 29.3.2010.” Mr.Amit Jain, Advocate appearing on behalf of the appellant has very fairly stated that after inspecting the record he has found that application for additional evidence was already decided by the learned Additional District Judge, Ludhiana vide his order dated 23.5.2008. Mr.B.R. Gupta, Advocate appearing on behalf of the respondent has submitted that notice of motion issued in this case was only on the contention made by learned counsel for the appellant that learned First Appellate Court has not decided the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short ‘CPC’). It is submitted that the statement made by learned counsel for the appellant is found to be false, hence the appeal deserves to be dismissed. I have heard both the learned counsel for the parties and perused the record with their assistance. It is true that notice of motion was issued on 16.1.2009 only on the contention of learned counsel for the appellant that lower appellate Court did not decide the application moved by the appellant for leading additional evidence while disposing of the appeal, which is found to be otherwise on record. In view of the above, I find that the appellant is guilty of suppresso veri and suggesto falsi. For the act and conduct of the appellant, this Court is of the view that he does not have any right to continue with the appeal especially when both the Courts have recorded RSA No.2917 of 2008(O&M) -4- concurrent finding of fact against him. In view thereof, the present appeal is dismissed. (RAKESH KUMAR JAIN) 27.07.2010 JUDGE Vivek