Ved Parkash vs Sushil Kumar and others

Ram Chand Gupta, J.

CM No. 4478-C of 2011.

Heard.

Taking into consideration the facts mentioned in the application, delay of 219 days in re-filing the appeal is, hereby, condoned. Civil Misc. stands disposed of.

CM No. 4479-C of 2011

The application is allowed subject to just exceptions.

CM No. 4480-C of 2011

Heard.

In view of the facts mentioned in the application accompanied by affidavit, Appellant is allowed to make good the deficiency in court fee. It has been stated by learned Counsel for the Appellant that he has already made good the deficiency in the court fee.

Civil Misc. stands disposed of.

RSA No. 1608 of 2011.

The present regular second appeal has been filed against judgment and decree dated 04.11.2009 passed by learned District Judge, Yamuna Nagar at Jagadhari dismissing appeal filed by the present Appellant-Defendant against judgment and decree dated 11.12.2007 passed by learned Civil Judge (Junior Division), Yamuna Nagar at Jagadhari vide which suit filed by Respondents-Plaintiffs was decreed.

I have heard learned Counsel for the parties and have gone through the whole record carefully including both the judgments passed by learned courts below.

Briefly stated, the Respondents-Plaintiffs filed the suit for decree for possession of land measuring one marla described in the heading of the plaint, on the plea that the same was encroached by the Respondents.

On notice being issued, the plea was contested by present Appellant-Defendant.

On appreciation of evidence adduced by both the parties, learned trial Court decreed the suit filed by Respondents-Plaintiffs. Appeal filed by the present Appellant-Defendant was also dismissed by learned District Judge, Yamuna Nagar at Jagadhari.

It has been contended by the learned Counsel for the Appellant-Defendant that an application under Order 41 Rule 27 of the CPC (for short ''CPC'') along with copies of sale deed and jamabandies sought to be produced, was filed by the Appellant-Defendant before the learned first appellate Court. It was further contended that though the documents were material for the just decision of the present suit and however, without deciding the said application, the impugned judgment has been passed by learned first appellate Court.

The fact that the application under Order 41 Rule 27 of the CPC filed by Appellant-Defendant remained undecided before passing the impugned judgment by the first Appellate Court, has not been disputed by the learned Counsel for the Respondents-Plaintiffs.

Hence, there is force in the argument of the learned Counsel for the Appellant-Defendant that the impugned judgment cannot be sustained in the eyes of law. The present appeal is accepted. The impugned judgment and decree passed by the learned District Judge, Yamuna Nagar at Jagadhari is, hereby, set aside.

The case is remanded to learned District Judge, Yamuna Nagar at Jagadhari with a direction to decide the appeal afresh along with application filed under Order 41 Rule 27 CPC after hearing both the parties.

Both the parties are directed to appear before learned District Judge, Yamuna Nagar at Jagadhari on 22.12.2011.

However, learned District Judge, Yamuna Nagar at Jagadhari is directed to decide this appeal expeditiously by giving short adjournments as the present litigation is pending since 2003.