Shanti Swaroop Sardana (Since Deceased) Through His Legal Representatives Smt. Anju Sardana And Others vs Union Of India And Another

Issue No. 1:,"Plaintiffs are not owners, though they are in possession of it

Issue No. 2:,No

Issue No. 3:,Yes

Issue No. 4:,Yes Â​but permission under Section 80(2) C.P.C. has been granted.

Issue No. 5:,No

Issue No. 6:,No

Issue No. 7:,No

Issue No. 8:,No

Relief:,Suit dismissed.â€​

(b). There happens to be another application filed under Order Order 41, Rule 27 read with the Section 151 & 107 of the Code of Civil Procedure on",

record, which is dated 13.11.1995. By way of this application, the appellants prayed to lead additional evidence by placing on record a copy of",

“Musaviâ€​.,

(c). Vide another application dated 24.04.1996, the documents which the appellants/plaintiffs intended to place on record by way of additional",

evidence were:,

“(a) Sale Certificate issued by the U.O.O. to Shri Dina Nath, predecessorÂ​inÂ​interest of Shri Kundan Lal Ahuja;",

(b) Sale Deed executed in favour of Shri Kundan Lal Ahuja by Shri Dnna Nath; and,

(c) Judgment and compromise deeds of cases filed by Shri Kundan Lal alongwith applications.â€​,

The reason mentioned in the application as to why these documents were intended to be placed on record by way of additional evidence was to prove,

and exhibit the actual boundary position of the suit land.,

A perusal of the judgment passed by the learned First Appellate Court demonstrates that applications filed under Order 41, Rule 27 of the Code of",

Civil Procedure have been dismissed by holding as under:,

“18. The plaintiffs were not entitled to the benefit of Section 41 of the Transfer of Property Act as held by the Hon’ble High Court while,

dismissing their CWPs. vide judgment dated 14.04.1975. The doctrine of promissory estoppel was not applicable as the suit property was evaccue,

property. The plaintiffs had applied for additional evidence so as to tender in evidence the copy of judgment dated 21.06.1994 passed by the,

Hon’ble High Court of H.P. Simply because the Hon’ble High Court of H.P. had quashed criminal proceedings against the predecessorÂinÂ‐,

title of the plaintiffs and some others established nothing. The Hon’ble High Court vide judgment dated 21.6.1994 had not determined the,

ownership and possession of the plaintiffs of the suit property. It has been established as a fact that the suit property was beyond the limits of Central,

Hotel main building and, hence the plaintiffs were rank trespassers. The copy of field map sought to be produced by the plaintiffs at appellate stage",

was of no assistance to the plaintiffs. The field maps already on record were, in no way, different from the copy sought to be produced at appellate",

stage. Hence, application for additional evidence is rejected.â€​",

Order XLI, Rule 27 of the Code of Civil Procedure, inter alia, provides for production of additional evidence in Appellate Court, if the Court from",

whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or the party seeking to produce additional",

evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of",

due diligence, be produced by him at the time when the decree appealed against was passed.",

In the considered view of this Court, when an Appellate Court is dealing with an application under Order Order XLI, Rule 27 of the Code of Civil",

Procedure, the first call which the Court has to take is as to whether the same meets the conditions contemplated under Order Order XLI, Rule 27 of",

the Code of Civil Procedure or not. In other words, in case the additional evidence is not required by the Appellate Court for pronouncement of a",

judgment, then it is the duty of the Appellate Court to see as to whether the additional evidence sought to be produced, was refused to be admitted by",

the Court from whose decree the appeal is preferred or whether the party seeking to produce additional evidence, notwithstanding due diligence, or",

even after exercise of due diligence, was not able to produce it on record.",

I have referred to in some detail the documents which were intended to be placed on record by the appellants/plaintiffs before the learned First,

Appellate Court by way of applications filed under Order XLI, Rule 27 of the Code of Civil Procedure. In paraÂ18 of the judgment of the learned",

First Appellate Court only two applications have been discussed with regard to documents, i.e., (a) copy of the judgment dated 21.06.1994; and (b) a",

copy of field map. The prayer of the plaintiffs/appellants by way of third application dated 24.04.1996 filed under Order XLI, Rule 27 of the Code of",

Civil Procedure was to place on record the following documents:,

“(a) Sale Certificate issued by the U.O.O. to Shri Dina Nath, predecessorÂ​inÂ​interest of Shri Kundan Lal Ahuja;",

(b) Sale Deed executed in favour of Shri Kundan Lal Ahuja by Shri Dnna Nath; and,

(c) Judgment and compromise deeds of cases filed by Shri Kundan Lal alongwith applications.â€​,

This application dated 24.04.1996 in fact has not been decided by the learned First Appellate Court, as no order has been passed in the judgment with",

regard to the fate of this application.,

It is settled law that when a party approaches the Appellate Court with an application under Order XLI, Rule 27 of the Code of Civil Procedure,",

then the application has to be decided one way or the other by the Appellate Court and the same cannot remain undecided on the Court record,",

because none can say as to what would have been the effect of the decision of the same on the final judgment, if the application was allowed by the",

Court. In this case, by not deciding this third application dated 24.0.4.1996 filed under Order XLI, Rule 27 of the Code of Civil Procedure, the learned",

First Appellate Court has committed a material irregularity, which renders the judgment and decree passed by it non est in the eyes of law. It is again",

reiterated that this Court is not suggesting as to what order should have been passed on the said application by the learned First Appellate Court and,

all that this Court is laying stress upon is that once this application was on record, learned First Appellate Court was duty bound to decide it.",

It is relevant to state here that Zimini order passed by the learned First Appellate Court dated 24.04.1996 is self speaking that it was on this date,

that an application under Order XLI, Rule 27 of the Code of Civil Procedure was filed and the same was ordered to be listed by the learned First",

Appellate Court on the next date fixed, i.e., 29.04.1996. Thus, here it is not a case where the cognizance of the application had not been taken by the",

Court. In these circumstances, it is reiterated that nonÂadjudication of this application by the learned First Appellate Court renders the judgment and",

decree passed by it bad in law. Substantial question of law No. 1 is answered accordingly and in view of this, the other substantial questions of law",

call for no adjudication.,

Accordingly, this appeal is allowed on this point alone by setting aside the judgment and decree dated 03.06.1996, passed by the learned First",

Appellate Court in Civil Appeal No. 108ÂS/13 of 1994, titled as Shri Gian Chand Sardana and others Vs. The Union of Indian and another and the",

case is remanded back to the learned First Appellate Court for adjudication afresh.,

As it is quite an old appeal, learned First Appellate Court is requested to make an endeavour to decide the same as expeditiously as possible and",

preferably before 31st December, 2021. Miscellaneous applications, if any, also stand disposed of.",