IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2663 of 2009 Date of Decision: 28.07.2009 Raj @ Raj Rani Appellant Versus Kiran Sharma Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.Aman Bahri, Advocate for the appellant ….. Jasbir Singh, J.(Oral) Notice of motion. Mr.Vipin Mahajan, Advocate accepts notice on behalf of the respondent. This Regular Second Appeal has been filed to lay challenge to judgment passed by the trial Court on 21.10.2005, partly decreeing the suit filed by the appellant. Further challenge is to the order dated 9.4.2009, passed by the appellate Court, dismissing her appeal. It is primary contention of counsel for the appellant that during pendency of appeal before the Court below, the appellant had moved an application to lead additional evidence. Copy of that application has been put on record as Annexure A4. Counsel for the appellant states that the application was still pending, when final order was passed by the appellate Court below. Counsel further submits that the facts mentioned in that application were not even noticed by the appellate court when passing Regular Second Appeal No.2663 of 2009 the judgment under challenge. He prayed that judgment of the appellate Court be set aside. To strengthen his argument, he has placed reliance upon a judgment of the Hon’ble Supreme Court in Jatinder Singh and another v. Mehar Singh and others, 2009(1) R.C.R. (Civil) 253, wherein it was held that if the Court below has failed to take note of application moved under Order 41 Rule 27 CPC, when passing the final order, the order cannot be sustained. It was further held that it is duty of the Court to deal with the application moved for leading additional evidence. Faced with the situation, counsel for the respondent states that let judgment passed by the appellate Court be set aside and the matter be remanded to the Court below for fresh decision. In view of fair concession given, this appeal is partly allowed, judgment passed by the appellate Court dated 9.4.2009 is set aside and matter is remitted to the Court below for fresh decision on merits. The Court below is directed to decide the appeal positively within a period of four months from the date of receipt of a copy of this order. It is made clear that anything said in this order, shall have no bearing on the merits of the case. 28.07.2009 (Jasbir Singh) gk Judge 2