Inder Kumar vs Yogesh Kumar

Leave granted.

The plaintiff whose decree of possession by redemption of mortgage has been reversed by the High Court in Second Appeal has approached this Court by means of the present appeal.

The relief sought in the suit was sought to be resisted by the defendant (respondent herein) by contending that he was not the mortgagee but the tenant of the original landlord. To prove the aforesaid point, the defendant sought leave of the learned trial Court to adduce additional evidence by way of new/additional documents which was rejected by order dated 4th March, 2006 on the ground that the defendant had taken more than a year to adduce his evidence in the case. The said order was confirmed by the High Court in the civil revision proceeding by order dated 17th March, 2006, which is extracted below:

"The defendant has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 4.3.2006 passed by the Civil Judge (Jr. Division), Sunam, whereby his application for leading additional evidence has been dismissed.

After arguing for some time, counsel for the petitioner states that he does not want to press this petition.

Dismissed as not pressed."

In Second Appeal before the High Court filed by the defendant against the concurrent view taken by the learned trial Court and the First Appeal Court in favour of the plaintiff, the point with regard to additional evidence was again urged. The High Court construing the order dated 17th March, 2006 passed in civil revision proceedings, came to the conclusion that the said order dated 17th March, 2006 was not one of disposal on merits and, therefore, there would not be a bar to a reconsideration of the same. Accordingly, the decree was reversed and the matter was remanded to the First Appeal Court for recording of additional evidence.

The order dated 17th March, 2006 passed by the High Court in the civil revision proceeding was passed after the arguments were heard on behalf of the parties. At any rate, the said order had attained finality. The proceedings which were closed by the aforesaid order could not have been collaterally opened by the High Court by taking a view that the order dated 17th March, 2006 in the civil revision proceeding was not an order on merit. We disagree with the High Court on the aforesaid aspect of the case. Consequently, the remand order passed by the High Court would be legally fragile and open to interference. Accordingly and for the reasons aforesaid we allow the present appeals to the extent indicated above and remit the matter to the High Court for decision on merits.

The appeals are disposed of in the above terms.