Mohd. Ismail vs Shah Jebe Begum

Mahesh Chandra, J.

(1) It has been requested by the counsel for the parties that it may be heard early. Heard.

(2) This second appeal is directed against the judgment and decree dated 16th December, 1987 whereby the appeal filed by the plaintiff was dismissed after the suit has been earlier dismissed by the trial court. From the perusal of the lower appellate court judgment I find that in the lower appellate court an application under Order 41 Rule 27 of the CPC had been filed by the plaintiff whereby it was requested by him that he may be permitted to place on record certified copy of plan which was attached with the sale-deed. The said application was rejected. Thereafter simultaneously the appeal of the plaintiff was also dismissed. The perusal of the order further shows that the lower appellate court has not cared to give any reasons for the dismissal of the appeal. The mere fact that there was no merit in the application under Order 41 Rule 27 does not mean that the appeal was to be dismissed as if it was being heard in liming. For this short reason this appeal must be allowed and it is accordingly allowed and judgment and decree of lower appellate court dismissing appeal is set aside. This is without prejudice to the right of the appellant to challenge the finding of the lower appellate court on the application under Order 41 Rule 27 CPC as and when the first appeal is disposed of by the lower court on merits. In consequence the matter is remanded back to lower appellate court for fresh disposal of appeal on merits after the stags of dismissal of Order 41 Rule 27 application. The parties are directed to appear before the lower court on 27th March, 1989. No orders as to costs.