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Judgment
D.N. Patel, J.—Despite the order passed by this Court dated 25th February 2011 that the matter will be heard for final disposal and though the Respondent is served, no one appears on behalf of the Respondent.
The present petition has been preferred against the order passed by the Additional District Judge, Fast Track Court-II, Dhanbad dated 15th January 2011 in Title (Eviction) Appeal No. 187 of 2009, whereby an application preferred by the original Plaintiff under Order XLI Rule 27 CPC for presenting additional documents has been allowed by the following order:
15.1.11-Both side file hazari through lawyer.
On admission Notice dated 24.12.02, Notice dt. 3.2.99, Notice dt. 9.11.09 and Misc. receipt No. 95642 dt. 13.10.10 have been marked as ext. 1, 2, 3, 4 and 5 respectively.
Put up on 24.1.11 for further step or rebuttal.
Having heard the learned Counsel for the Petitioner and looking to the facts and circumstances of the case, I hereby quash and set aside the order passed by the Additional District Judge, Fast Track Court-II, Dhanbad dated 15th January 2011 mainly on the following facts and reasons:
(i) The present Respondent is the original Plaintiff, who has instituted Title (Eviction) Suit No. 85 of 1996, which was decreed in favour of the Plaintiff and an appeal was preferred by the present Petitioner bearing Title Appeal No. 187 of 2009 before the lower appellate court.
(ii) It appears that in the pending appeal under Order XLI Rule 27 C.P.C., an application was preferred by the decree holder (original Plaintiff) for adducing evidence at the appellate stage.
(iii) It further appears that this case was opposed by the present Petitioner, who is the original Defendant/Appellant of Title Appeal No. 187 of 2009 and without giving any opportunity of being heard, an order has been passed by the lower appellate court dated 15th January 2011, which is incorporated hereinabove and these documents have been marked as Ext. 1,2, 3, 4 and and 5.
(iv) Looking to the facts of the case, no opportunity of being heard has been given to the present Petitioner and no reason has been assigned for allowing an application under Order XLI Rule 26 CPC There are conditions precedent before allowing such type of application as per Order XLI Rule 26 CPC From the impugned order, it is not clear whether those conditions were present or not. There are only few instances in which such an application could have been allowed. Looking to the impugned order, nothing is clear whether those conditions were ever present. The impugned order is non-speaking order.
In view of these facts and circumstances, I hereby quash and set aside the order passed by the lower appellate court and direct the Additional District Judge-Fast Track Court-II, Dhanbad to hear afresh an application preferred Order XLI Rule 26 CPC by the Respondent, in Title Appeal No. 187 of 2009 and after considering the objections raised by the Appellant i.e. the present Petitioner, the same will be decided on its own merit.
This writ petition is hereby allowed and disposed of.