Chetan Ram vs Smt. Maya Devi

Vinod Kumar Misra, J. - Heard learned counsel for the appellant and learned counsel for the respondent.

Learned counsel for both the sides submitted that the impugned judgement of the learned Ist Appellate court dated 19.7.2016 passed in Civil Appeal No. 34 of 2009, Chetan Ram v. Smt. Maya Devi and others, is in breach of Order 41, Rule 17 explanation.

I have gone through the judgement of the learned Ist Appellate court dated 19.7.2016.

Learned Ist Appellate court has decided the appeal on merit. Explanation appended in Order 41, Rule 17 by the Act 104 of 1976 w.e.f. 1.2.1977 specifically mentions ''Nothing this sub rule shall be construed as empowering the Court to dismiss the appeal on merits. Learned Ist Appellate court has failed to peruse the Order 41, Rule 17 explanation. Consequently, impugned judgement dated 19.7.2016 is liable to be set aside.

The Second Appeal is, accordingly, allowed.

Impugned judgement dated 19.7.2016 passed by learned District Judge, Bhadohi-Gyanpur is set aside and the matter is remanded back to the District court, Bhadohi-Gyanpur to decide the appeal after hearing both the parties on merit in accordance with law within a period of six months since the date of production of the certified copy of the judgement of this Court.