1 S.B. Civil Second Appeal No. 636/2009 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT S. B. Civil Second Appeal No. 636/2009 Bhanwar Lal @ Bhonri Lal through Legal Representative Narendra Kumar Versus Nirmal Kumar Duggar. Date of Judgment: 09.11.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. R.K. Agarwal, for the appellant. Mr. M.M. Ranjan, for the respondent. BY THE COURT:- Learned counsel for the respondent has moved an application dated 22.07.2010 with a prayer that appeal of appellant be allowed and the case may be remanded back to the first appellate court for disposal of the appeal afresh after affording plaintiff-respondent an opportunity to produce the documents in rebuttal. 2. Learned counsel for both the parties submitted that second appeal itself may be heard and disposed off finally at this stage. In these circumstances, I heard second appeal finally and the same is being disposed off. 3. Briefly stated the facts of the case are that plaintiff-respondent Nirmal Kumar Duggar 2 S.B. Civil Second Appeal No. 636/2009 filed a suit of eviction and recovery of arrears of rent in respect of rented premises against tenant-appellant on the ground of default in making payment of monthly rent and denial of title. The issue relating to title was not pressed by plaintiff in the trial court. Trial court after considering the submissions of learned counsel for the parties, passed a limited decree for recovery of arrears of rent and no decree was passed in respect of eviction of the premises. 4. Being aggrieved with the judgment of trial court, a regular appeal was filed by plaintiff to pass a decree of eviction also. First appellate court while setting aside the judgment and decree passed by the trial court remanded the matter back to the trial court with certain directions. Remand order passed by first appellate court was challenged by plaintiff- respondent before this Court in S.B. Misc. Appeal No. 1563/1999, which was allowed by this Court vide order dated 07.08.2008 and the case was remanded back to the first appellate court with a direction to decide the regular appeal afresh after hearing both the parties on merits. Operative portion of order dated 07.08.2008 passed by this Court is reproduced as under: 3 S.B. Civil Second Appeal No. 636/2009 “In view of the above, I am satisfied that the notice of suit as well as application under Order 22 Rule 4 CPC was served upon the legal representative of deceased defendant(respondent herein). There was no necessity to send a fresh summon of the suit along-with the copy of the amended plaint to the substituted legal representative of the deceased defendant. The trial court was right in passing the ex-parte order against the defendant and proceeding with the suit ex-parte when he failed to appear before it in spite of service of summon. The first appellate court committed an illegality in setting-aside the order passed by the trial court only on the ground that after substitution of legal representative of deceased defendant it was necessary to send amended plaint to the legal representative again. In my view, the judgment of the first appellate court cannot be allowed to be sustained and the same is liable to be set-aside. Consequently, the miscellaneous appeal is allowed. The impugned order passed by the first appellate court dated 31st May, 1999 is set-aside and the case is remitted back to the first appellate court i.e. Additional District & Sessions Judge No. 8, Jaipur City, Jaipur with a direction to decide the Regular Appeal No. 29/98 afresh after hearing both the parties on merits. Both the parties are directed to appear before the said court on 2nd September, 2008.” 5. It is not disputed by both the parties that above order of this Court has attained finality as it was not assailed by any party. 4 S.B. Civil Second Appeal No. 636/2009 6. As per above order passed by this Court, first appellate court again heard the arguments of the appeal, allowed the appeal of the plaintiff and again passed a decree of eviction of the rented premises vide judgment and decree dated 04th September, 2009, which is under challenge in this second appeal. 7. This Court while admitting the present second appeal on 18.02.2010 framed the following substantial question of law: “Whether rejection of plaint under Order 41 Rule 27 of the Code of Civil Procedure by the appellate court below suffers from manifest perversity and legal infirmity?” 8. As submitted and agreed by both the parties, the word “plaint” used in first line of the above substantial question of law will be read as “application”. 9. It appears from the judgments passed by both the courts below and from the submissions of learned counsel for the parties that an application under Order 41 Rule 27 CPC was filed by defendant-appellant before the first appellate court alongwith certain documents, but the said application was rejected. This Court only on that point framed substantial question of law as reproduced above. 10. Plaintiff-respondent has filed an application in this appeal on 22.07.2010 stating 5 S.B. Civil Second Appeal No. 636/2009 therein that application filed by defendant under Order 41 Rule 27 CPC, which has been rejected by the first appellate court, may be allowed and the case may be remanded back to the first appellate court to decide the appeal again afresh on merits after affording an opportunity to plaintiff to produce the documents in rebuttal. No reply to the said application has been filed by the defendant-appellant. During the course of arguments, learned counsel for the appellant fairly contended that the case may now be remanded back to the first appellate court with a direction to decide the appeal on merits. 11. I have considered the submissions of learned counsel for both the parties and I find that suit for eviction was decreed on the ground of default in making payment of rent. Submission of defendant before the first appellate court was that arrear of rent was paid in time and there was no default in making payment of rent, the defendant annexed copies of tenders/receipts having remitted/deposited the amount of rent. In these circumstances also, I find that first appellate court committed an illegality in rejecting the application filed by defendant as documents annexed with the application were nothing except copies of tenders/receipts having deposited the amount of 6 S.B. Civil Second Appeal No. 636/2009 rent, therefore, the application ought to have been allowed and documents annexed with the application should have been considered while deciding the appeal, after affording an opportunity to the plaintiff to file documents in rebuttal and to submit whether deposit of rent was as per law or not. 12. In view of the above discussions, the substantial question of law framed by this Court on 18.02.2010 is decided in favour of the appellant. Consequently, application under Order 41 Rule 27 CPC filed by defendant before first appellate court is allowed and documents annexed with the application are taken on record before the first appellate court. However, it is made clear that plaintiff will be at liberty to file any document in rebuttal of the said documents and to argue the matter in accordance with law. 13. Consequently, second appeal as well as application dated 22.07.2010 both are allowed. Impugned judgment and decree dated 04th September, 2009 passed by Additional District Judge No. 8, Jaipur City, Jaipur in Civil Regular Appeal No. 29/1998 is set aside and the matter is remanded back to the first appellate court for deciding the appeal afresh on merits and as per observations and directions made 7 S.B. Civil Second Appeal No. 636/2009 hereinabove. 14. Both the parties are directed to appear before first appellate court i.e. Additional District Judge, No. 8, Jaipur city, Jaipur on 06.12.2010. First appellate court is directed to decide the appeal as early as possible but not later than 30th April, 2011. 15. Parties are directed to bear their own costs. 16. Registry is directed to send back the record of both the courts below to the Court of Additional District Judge No. 8, Jaipur City, Jaipur immediately. (Narendra Kumar Jain),J. Manoj, Item No.S.4.