R.S.A.No. 1466 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1466 of 2008 (O&M) Date of decision: 10.5.2011 Swaran Kaur ......Appellant Versus Kartar Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Premjit Kalia, Advocate, for the appellant. Mr.V.K.Kaushal, Advocate for Mr.B.R.Mahajan, Advocate, for respondent No.1. **** SABINA, J. The plaintiff had filed a suit for declaration and the said suit was decreed by the trial Court vide judgment and decree dated 1.2.2002. Appeal filed by defendant No.1 against the said judgment and decree was dismissed by Additional District Judge vide judgment and decree dated 14.2.2008. Hence, the present appeal by defendant No.1. During the course of arguments learned counsel for the R.S.A.No. 1466 of 2008 (O&M) 2 appellant has submitted that before the first Appellate Court, defendant No.1 had moved an application for permission to lead additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (CPC for short). By way of an additional evidence, defendant No.1 sought permission to get the thumb impression of Biro, appended on the sale deed in his possession as well as the sale deed in possession of the plaintiff, compared with her specimen thumb impression on the court file when she appeared as DW-1. Learned counsel for the respondents, on the other hand, has submitted that the case was not liable to be remanded back to the first Appellate Court merely because the application under Order 41 Rule 27 CPC had not been decided. The evidence now sought to be led by way of additional evidence was not relevant for the just decision of the case. The substantial question of law that arises in this case is “whether the learned first Appellate Court could have decided the appeal on merits without deciding the application under Order 41 Rule 27 CPC?” In the present case, plaintiffs had filed a suit for declaration to the effect that he was owner of the suit property on the basis of sale deed dated 4.2.1988 allegedly executed by defendants No.2 to 4 and Biro. The case of defendant No.1 was that the said sale deed was a forged and fabricated document as defendant Nos. 3 and 4 and Biro had executed a sale deed dated 22.2.1988 in favour of defendant No.1. By way of an additional evidence, defendant No.1 sought permission to get the thumb impression of Biro, appended on the sale deed in his possession as R.S.A.No. 1466 of 2008 (O&M) 3 well as the sale deed in possession of the plaintiff, compared with her specimen thumb impression on the court file when she appeared in the witness box as DW-1. Learned first Appellate Court has, however, not decided the application under Order 41 Rule 27 CPC, while deciding the appeal. It was incumbent on the learned first Appellate Court to have decided the application moved by appellant- defendant No.1 under Order 41 Rule 27 CPC along with the main appeal. The substantial question of law that arises in this appeal stands answered accordingly. In these circumstances, this appeal is allowed. The impugned judgment and decree passed by the first Appellate Court dated 14.2..2008 are set aside. The case is remanded back to the first Appellate Court for deciding the same afresh along with the application under Order 41 Rule 27 CPC. Parties are directed to appear before the first Appellate Court on 1.6.2011. (SABINA) JUDGE May 10, 2011 anita