1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT. MAHAVEER PRASAD. V. MST. SURAJ KUMARI AND OTHERS. S.B.CIVIL SECOND APPEAL NO. 234/2006 against the judgment and decree dated 22.04.2006, passed by Shri Patanjali Sharma, Additional District Judge No.2, Bhlwara affirming the judgment and decree dated 29.08.1997 passed by Shri Vishno Dutt Sharma, Civil Judge (Senior Division), Shahpura, Bhilwara in Civil Original Suit No.222/83 (92/82). DATE OF JUDGMENT : JANUARY 15, 2007 PRESENT HON'BLE MR. JUSTICE PRAKASH TATIA Mr.R.R.Nagori, for appellant. Mr.B.N.Kalla, for respaondents. BY THE COURT: This second appeal is against the judgment and decree of the trial Court dated 29th August, 1997 which was upehld by the 2 Appellate Court vide judgment and decree dated 22nd April, 2006. The trial Court decreed the suit of the plaintiff deceased Narendra Singh on the ground that the suit property is needed because of the need of the personal bona fide necessity of plaintiff's son Pushpendra Singh. The said finding was upheld by the First Appellate Court, after rejecting the defendants -appellant application filed under O.41, R.27, CPC. The core substantial question of law involved in this appeal which goes to the root of the matter is as under :- “Whether the First Appellate Court committed error of law in dismissing the defendants application under O.41, R.27, CPC.” At the request of the learned counsel for the parties, the appeal is heard. The defendants appellant submitted an applicationunder O.41, R.27, CPC, stating therein that for whose need the suit has been filed by the plaintiff, he is having his settled business at Surat. The appellant tried to obtain the copies from the Income-tax Department of the relevant documents, but those documents were not made available to the appellant defendants. Before this Court, the appellant submitted two applications under Section 151, CPC, and also placed on record orders passed by the Authority under the Right to Information 3 Act of Income Tax Department and order of appellate authority, whereby the Income-tax Department denied providing any information about the income tax account of the said Pushpendra Singh. Learned counsel for the appellants vehemently submitted that firstly, the landlord did not submit any reply to the application filed uander O.41,R.27, CPC., wherein the appellant specifically mentioned the income tax account number of Pushpendra Singh, for whose need the suit was filed and that fact has not been denied by the plaintiff. Secondly, the appellants made their all efforts for getting the relevant documents from the Incomne-tax Department and now, it is the admitted case of the defendant Pushpendra Singh that he is doing business at Surat. Therefore, according to the learned counsel for the appellant, since the core question involved in the suit was whether the suit property is required for the purpose of need of Pushpendra Singh and whether the evidence sought to be produced by the defendants is relevant and is beyond any doubt. Therefore, the First Appellate Court, even without there being any denial by the landlords wrongly rejected the application filed under O.41, R.27, CPC. Learned counsel for the respondent originally landlord vehemently submitted that the two courts below concurrently 4 recorded the findings of facts against the appellant and in view of the catena of judgments of Hon'ble the Apex Court, this Court may not interfere in the second appeal and the finding recorded by the two courts below. So far as the application under O.41, R.27, CPC, is concerned, according to the learned counsel for the respondents, there was delay on the part of the appellants in filing the application and they did not produce any documents along with the application under O.41, R.27, CPC., therefore, the First Appellate Court was right in dimissing the application. I considered the submissions of the learned counsel for the parties and perused the facts of the case. The First Appellate Court committed serious error in dismissing the appellant's application under O.41, R.27, CPC, becuase of the simple reason the First Appellate Court failed to appreicate the fact that the doucments sought to be relied upon by the appellants defendants were relevant for deciding issue of personal necessity of landlord and the documents were submitted by Pushpendra Singh himself in Income Tax Department, for whose need the suit was filed. Since the above documents were relevant for the purpose of deciding the issue of comparative hardship, therefore, even if the appellants failed to obtain the copies of the order, then that was because of the reason that the copies were not 5 given to the appellants and this fact has been proved from the documents placed on record by the appellants along with their application under Section151, CPC, which are the orders dated 23rd August, 2006 and 17th October, 2006. However, since the application has been filed, after delay, therefore, the plaintiffs are entitled to reasonable compensation of Rs.1,000/-. Hence, the substantial questionof law is decided in favour of the appellants and the application of the appellants under O.41, R.27, CPC, is allowed on payment of cost of Rs.1,000/-. The appellant will be free to move application of summoning of the record from the Income Tax Department only which is permissible by law.The trial Court may give opportunity to the appellant to submit proper application for summoning of the documents which be decided by the trial Court, after giving an opportunity of hearing to both the parties. The appellants shall be entitled to lead evidence only with respect to the plea taken by them in the application under O.41, R.27, CPC before First Appellate Court and under Section 151, CPC, before this Court and may use reply of respondent. The appellants shall also produce the certified copies of these applications before the trial Court and the respondents shall be free to file the reply to the applications, if any. The respondents-landlord shall have the opportunity to produce 6 evidence and lead evidence to rebut the pleas taken by the defendants. In view of the above, the order of dismissal of the application under O.41, R.27, CPC,is set aside and the consequence is that the judgment and decree passed by the First Appellate Court dated 22nd April, 2006 and judgment and decree passed by the trial Court dated 29th August, 1997 are liable to be set aside. Hence, set aside. The matter is remanded to the learned trial Court for deciding the suit afresh only on the question of personal bona fide necessity and comparative hardship after affording opportunity of hearing to both the parties in accordance with law. Both the parties are directed to appear before the trial Court on 20th February, 2007. (PRAKASH TATIA), J. Scd