S.B.C.S.A NO. 273/2008-L.Rs of Om Prakash vs. Smt. Purnima & Ors. Order dt:5/12/2008 1/2 S.B.CIVIL SECOND APPEAL NO. 273/2008 (L.Rs of Om Prakash vs. Smt. Purnima & Ors.) DATE OF ORDER : 5/12/2008 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.L.K.Purohit, for the appellant. Mr.S.N.Pungalia, for the respondents. 1. Heard learned counsels. 2. Learned counsel for the appellant submits that though the first appellate court had ordered on 15/11/2008 that the application under Order 41 Rule 27 CPC would be considered at the time of final hearing of the appeal but the said application escaped the notice of first appellate court and first appellate court did not decide the said application before deciding the appeal itself. 3. He submitted that in the said application the defendant had submitted that one shop had become available to the plaintiff respondents for satisfaction of their personal need and same was given to another tenant known as `Yash Collection'. Though reply to the said application was filed by the plaintiff respondents, however, in the absence of said application being decided, no evidence was brought before the Court as to whether the said shop became S.B.C.S.A NO. 273/2008-L.Rs of Om Prakash vs. Smt. Purnima & Ors. Order dt:5/12/2008 2/2 available to the plaintiff respondents for their use or the already existing tenant has changed the name of business and continued in the same premises. This has caused prejudice to the appellant defendants by non consideration of the application. 4. Learned counsel for the appellant relied upon the decision of Hon'ble Supreme Court in case of Hakam Singh & Anr. vs. State of Haryana & Ors. - 2008 AIR SCW 5042, wherein, the Hon'ble Apex Court has held that the application under Order 41 Rule 27 CPC is required to be considered before the decision of the appeal and thus the appeal decided without consideration of said application under Order 41 Rule 27 CPC is required to be set aside. 5. Consequently, this appeal is allowed and the order of the first appellate court dated 22/7/2008 is set aside and appeal is restored to the said appellate court for consideration of appeal afresh after decision of application under Order 41 Rule 27 CPC. The first appellate court shall redecide the appeal itself within one month from today and parties are directed to appear before the first appellate court on 15/12/2008. (DR.VINEET KOTHARI), J. item no.17 baweja/-