RSA No.2734 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2734 of 2005 Date of Decision: 29.01.2009 Smt.Jagir Kaur ..Appellant Vs. Bikkar Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Ashok Singla, Advocate, for the appellant. Mr.N.S.Thind, Advocate, Mr.N.K.Malhotra, Advocate, --- Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments and decree dated 17.7.1997 and 26.2.2005 passed by the learned courts below vide which suit filed by the plaintiff/appellant for declaration that she is the owner to the extent of 1/4th share of the land situated in village Kot Sukhia Tehsil and District Faridkot as per Jamabandi for the year 1981- 82 with a consequential relief of joint possession, stands dismissed. RSA No.2734 of 2005 2 Against the judgment and decree passed by the learned trial court the appellant/plaintiff had preferred an appeal. It is the case of the plaintiff/appellant that in the appeal an application under Order 41 Rule 27 of the Code of Civil Procedure (for short the Code) was moved for permission to lead additional evidence. Learned lower appellate court while deciding the appeal has not disposed of the said application. Learned counsel for the appellant, thus, claims that following substantial question of law arises in this appeal: 1. Whether the judgment and decree passed by the learned first appellate court without deciding the application for additional evidence can be sustained? In support of the substantial question of law, learned counsel for the appellant has placed reliance on the judgment of this court in the case of Baldev Singh Vs. Malkiat Singh 2001 (4) RCR (Civil) 332, wherein this court has been pleased to lay down as under:- “9. There is one more ground to set aside the judgment and decree of the first appellate Court. The record of the first appellate Court shows that the defendants made an application under Order 41, Rules 27 CPC for leading additional evidence. This application was moved on 18th October, 1989. Reply was taken but no separate order was passed. “ The contention of the learned counsel for the appellant is that the substantial question of law as framed deserves to be answered in favour RSA No.2734 of 2005 3 of the appellant-plaintiff. Learned counsel for the respondents contends that by way of additional evidence the plaintiff/appellant wanted to produce on record copy of the judgment which is sub-judice in appeal, in this court and has not yet attained finality and therefore, of no consequence. The contention of the learned counsel for the respondents is that the application moved by the plaintiff/appellant under Order 41 Rule 27 of the Code was merely an attempt to delay the proceedings as the judgment sought to be produced by way of additional evidence was totally irrelevant and was not necessary for pronouncement of judgment. Learned counsel for the respondents also contends that the judgment on which reliance is sought to be placed by way of additional evidence is, in fact, not inter se between the parties and thus, not relevant. It is contended that application for additional evidence moved by the plaintiff/appellant deserves to be dismissed. Learned counsel for the respondents by placing reliance on the judgment of Hon'ble Supreme Court in the case of Mohd.Akram Ansari Vs. Chief Election Officer & Ors. 2008 (1) R.A.J.82 further contends that it is settled law, that there is presumption in law, that a Judge while disposing the appeal, deal with all the questions raised or which could be raised. The application moved by the appellant would be deemed to have been dismissed by application of settled law. On consideration of the matter, I find no force in the contentions raised by the learned counsel for the respondents. RSA No.2734 of 2005 4 It was for the learned lower appellate court to see whether there was any merit in the application moved by the appellant under Order 41 Rule 27 of the Code. The lower appellate court should have disposed of the application for additional evidence along with the appeal. Once application is on record and is not decided then in view of the law laid down by this court in the case of Baldev Singh Vs. Malkiat Singh (supra), the judgment and decree of the learned lower appellate court cannot be sustained. The substantial question of law is answered in favour of the appellant/plaintiff. The appeal is allowed and the judgment and decree passed by the learned lower appellate court is set aside and case is remanded back to the learned lower appellate court to decide the appeal afresh after dealing with the application moved by the plaintiff/appellant under Order 41 Rule 27 of the Code in accordance with law. Keeping in view that application under Order 41 Rule 27 is to be disposed of along with appeal, learned lower appellate court is directed to dispose of the appeal expeditiously preferably within 2 months from the date of receipt of certified copy of this order. The parties through their counsel are directed to appear before the learned lower appellate court on 27.2.2009. 29.01.2009 (Vinod K.Sharma) rp Judge