RSA No.115/2007 Page 1 of 3 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Judgment: 19th August, 2010 + R.S.A. No.115/2007 LIAKAT ALI (since deceased) Through LRs. ………..Appellant Through: Mr.J.C.Mahindru, Advocate. Versus AFSAR KHAN ……….Respondent Through: Mr.P.N.Bhan, Advocate. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR, J. (Oral) 1. This second appeal has impugned the judgment dated 25.1.2007. The trial judge vide judgment and decree dated 28.10.2005 had decreed the suit of the plaintiff Afsar Khan filed for possession, damages and permanent injunction in his favour. Suit property was shops bearing no.231/2 & 231/3 situated in house no.234, Main Road, Jafarabad, Delhi-53 which had been let out to the defendant initially at a monthly rental of Rs.75/- per month which was increased to Rs.82.50 paisa per month. The first appellate court vide impugned judgment and decree dated 25.1.2007 had endorsed the findings of the trial judge. 2. In this second appeal, the substantial questions of law were formulated on 15.5.2007 which inter alia read as follows: RSA No.115/2007 Page 2 of 3 1. Whether it was necessary for the First Appellate Court to decide the application moved under Order 41 Rule 27? 2. Whether the Trial Court had jurisdiction to try the present case? 3. On behalf of the appellant it has been urged that in view of the judgment of the Apex Court reported in (2006) 9 SCC 748 Sanjiv Goel vs. Avtar S.Sandhu where an application under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) had been filed before the appellate court, the appeal had been decided without disposing of the application, the Supreme Court had held that it was a miscarriage of justice. The order of the High Court dismissing the second appeal in limine without adverting to this submission of the appellant had been set aside. Matter had been remanded back to the first appellate court for decision on the pending application filed under Order 41 Rule 27 of the Code. 4. Learned counsel for the appellant has argued that in view of the ratio of the aforesaid judgment which is clearly and squarely applicable to the facts of the instant case, the application filed by the appellant before the first appellate court which had remained pending must first be decided; the case be remanded back to the first appellate court for decision on its merits. 5. Admittedly, in March 2006, before the first appellate court an application under Order 41 Rule 27 of the Code had been filed by the appellant Liyakat Ali. This application sought a prayer for leading additional evidence; reply had also been filed. Perusal of the trial court record shows that this application however RSA No.115/2007 Page 3 of 3 remained undecided and no orders were passed on this application. The appeal was, however, disposed of on 25.1.2007 without any reference to this application. 6. Contention of the learned counsel for the appellant prima facie appears to be correct. There has been a miscarriage of justice qua the appellant. It was incumbent upon the first appellate court i.e. the court of Additional District Judge to have dealt with the application filed under Order 41 Rule 27 of the Code by virtue of which the appellant had sought permission to lead additional evidence. Application remained pending and the appeal was decided. 7. Accordingly, the impugned judgment dated 25.1.2007 is set aside. Matter is remanded back to the District Judge for assigning it to an appropriate court for decision on the application of the appellant filed under Order 41 Rule 27 of the Code on merits in accordance with law. Parties to appear before the learned District & Sessions Judge-I, Tis Hazari Courts, Delhi on 30.8.2010, who will ensure that the concerned court shall dispose of the pending application as also the appeal within an outer limit of six weeks from 30.8.2010. Needless to state that the appellant will be at liberty to re-agitate the findings of the first appellate court, if so deemed fit. Appeal is disposed of in the above terms. INDERMEET KAUR, J. AUGUST 19, 2010 rb