R.S.A. No. 3109 of 2007 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3109 of 2007 (O&M) Date of decision: 17.03.2010 Sadhu Singh ....Appellant versus Saggar Singh ....Respondent CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sunil Chadha, Advocate, for the appellant. Mr. H.S. Dhindsa, Advocate, for the respondent. *** VINOD K. SHARMA, J. (ORAL) This judgment shall dispose of RSA No. 3109 of 2007 and RSA No. 3110 of 2007 both titled Sadhu Singh Vs. Saggar Singh, as common questions of law and facts are invloved. For brevity sake, facts are being taken from RSA No. 3109 of 2007. This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 23.3.2005, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondent for recovery of Rs.40,560/- (Rupees forty thousand five hundred and sixty only) i.e. Rs.39,000/- (Rupees thirty nine thousand only) principal and Rs.1,560/- (Rupees one thousand five hundred and sixty only) as interest with future interest, stands decreed. The plaintiff/respondent brought a suit for recovery on the R.S.A. No. 3109 of 2007 (O&M) -2- pleadings, that a sum of Rs.39,000/- (Rupees thirty nine thousand only) was advanced to the defendant/appellant against pronote and receipt. However, in spite of demand, the defendant/appellant failed to repay the amount. The suit was contested, by the defendant/appellant on the plea, that the pronote and receipt were got executed under the duress and coercion and were not binding on the defendant/appellant. The learned trial Court did not agree, with the stand taken by the defendant/appellant, and in view of the fact, that the pronote and receipt were duly proved, decreed the suit. The appeal also failed. Learned counsel for the appellant contends that this appeal raises the following substantial question of law: - “Whether the learned lower appellate Court, could decide the appeal without deciding the application under Order 41 Rule 27 of the Code of Civil Procedure for leading additional evidence?” In support of the substantial question of law, the learned counsel for the appellant contends, that application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, was moved by applicant to lead additional evidence i.e. the certified copy of the judgment and decree passed by the Court of Sh. S.P. Singh, PCS, Civil Judge (Junior Division), Ludhiana, in civil suit No. 319 of 1996 between the same parties, which was claimed to be necessary for adjudication of the case. The contention of the learned counsel for the appellant was, that the judgment and decree passed by the learned lower appellate Court R.S.A. No. 3109 of 2007 (O&M) -3- deserves to be set aside, as the application moved under Order 41 Rule 27 was not decided while dismissing the appeal. In support of the substantial question of law, the learned counsel for the appellant placed reliance on the judgment of this Court in Tehal Singh Vs. Harnam Singh, 1999(4) RCR (Civil) 611, wherein this Court was pleased to lay down as under: - “9. In this view of the matter, the present appeal is bound to be accepted and the case is bound to be remanded. 10. Resultantly, I allow this appeal, set aside the judgment and decree of the first appellate court and the case is remanded to the first appellate with the direction to the appellate court to re-admit the appeal to its original number and after giving notice to the parties, dispose of the appeal on merits as well as the application under O. 41 R. 27, CPC, within six months from the receipt of the copy of the order. The defendant- appellant is directed to appear before the successor court of 2nd Addl. Distt. Judge, Ferozepur, on 5.11.1999.” The Hon'ble Supreme Court in Hakam Singh Vs. State of Haryana and others, JT 2008(7) SC 490 has been pleased to lay down, that, in case, an application for additional evidence is dismissed by the appellate Court, by a non-speaking order, the order passed cannot be sustained in law. In view of what has been stated above, the substantial question of law, is answered in favour of the appellant and against the respondent. Consequently, this regular second appeal is allowed, the judgment and decree passed by the learned lower appellate Court is set R.S.A. No. 3109 of 2007 (O&M) -4- aside, and the case is remanded back to the learned lower appellate Court for decision afresh, after disposing of the application, moved by the defendant/appellant, under Order 41 Rule 27 of the Code of Civil Procedure. Parties through their counsel are directed to appeal before the learned lower appellate Court on 26.4.2010. Keeping in view the fact, that the suit is for recovery, the learned lower appellate Court is directed to dispose of the appeal along with application for additional evidence, preferably within two months of appearance of the parties. No costs. (Vinod K. Sharma) Judge March 17, 2010 R.S.