Smt. Raj Kumari Shrivastav vs Smt. Krishna Tiwary

Alok Aradhe, J.—This appeal is by the plaintiff, which was admitted by a Bench of this Court on the following substantial questions of law:-- 1. Whether the lower appellate Court has acted illegally in dismissing the application under Order 41 Rule 27 of the CPC dated 28.4.1995 without adverting to the merits of the appeal in contravention of settled law propounded by this Court in Khemchand Mulchand Vs. Government of Madhya Pradesh, Bhopal and others,

Whether the learned A.D.J. has acted illegally in not deciding the application under Order 41 Rule 27 of the Code of Civil Procedure?

Facts giving rise to filing of the appeal briefly stated are that the plaintiff filed a civil suit for declaration and injunction in respect of the land admeasuring 384 square feet. The plaintiff claimed title to the aforesaid land on the basis of registered sale-deed dated 14.2.1978. However, the defendant started interfering with the possession of the plaintiff over the said land. Accordingly, the plaintiff filed the suit seeking relief as aforesaid.

The defendants filed the written statement, in which inter-alia it was pleaded that the defendant has been using the land in question as road since 1978. It was further pleaded that the predecessor of the plaintiff had no authority to convey the suit property to the plaintiff.

The trial Court vide judgment and decree dated 30.6.1990 dismissed the suit filed by the plaintiff. Being aggrieved by the aforesaid decree, the plaintiff preferred an appeal. During pendency of the appeal, the plaintiff moved an application on 28.4.1995 under Order 41 Rule 27 of the Code of Civil Procedure. The Lower Appellate Court heard the arguments on the aforesaid application on 08.07.1996 and dismissed the same vide order dated 21.08.1996. Thereafter, final arguments in the appeal was heard on 14.3.1997 and thereafter the appeal was dismissed vide judgment and decree dated 31.3.1997.

Learned counsel for the appellant submitted that the Lower Appellate Court grossly erred in rejecting the application under Order 41 Rule 27 of the CPC before decision of the appeal on merits.

I have considered the submissions made by learned counsel for the appellant. In case of Khemchand Mulchand Vs. Government of Madhya Pradesh, Bhopal and others, it has been held that if an application under Order 41 Rule 27 of the CPC is made, the same should be decided only after hearing the appeal on merits and not before. In view of aforesaid enunciation of law by this Court, the Lower Appellate Court committed an error of law in deciding the appeal under Order 41 Rule 27 of the CPC without hearing the appeal on merits.

For the aforementioned reasons, the first substantial question of law framed by this Court is answered in affirmative and in favour of the appellant. In view of answer to the first substantial question of law, it is not necessary to answer second substantial question of law.

In the result, the judgment and decree passed by the Lower Appellate Court is hereby set aside. The matter is remanded to the Lower Appellate Court to hear the appeal on merits afresh and to consider the application under Order 41 Rule 27 of the CPC while hearing the appeal on merits in view of law laid down by this Court in case of Khemchand (supra). The Lower Appellate Court shall make an endeavour to decide the appeal expeditiously preferably within a period of 2 months from the date of receipt of the record. The record of Courts below be transmitted forthwith. Accordingly, the appeal is disposed of.