Full Judgment Text
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CASE NO.:
Appeal (civil) 2349 of 2008
PETITIONER:
Ramesh Chand and Anr
RESPONDENT:
Ghaziabad Development Authority and Ors
DATE OF JUDGMENT: 31/03/2008
BENCH:
TARUN CHATTERJEE & HARJIT SINGH BEDI
JUDGMENT:
JUDGMENT
O R D E R
CIVIL APPEAL NO 2349 OF 2008
(Arising out of SLP (C) No.8287 of 2006)
1. Leave granted.
2. This appeal is filed against the final order dated 8th of
February, 2006 passed by the High Court of Judicature at
Allahabad in second Appeal No. 443 of 2005 by which the High
Court had dismissed the second appeal on the ground that
reappraisal of evidence was not permitted in deciding the second
appeal which was filed at the instance of the appellants.
3. In our view, this appeal can be disposed of on a very short
question. It is an admitted position that during the pendency of
the second appeal, an application for acceptance of additional
evidence under Order 41, Rule 27 of the Code of Civil Procedure
was filed at the instance of the appellants, which, however, was
not decided at the time of disposal of the second appeal. In our
view, this procedure adopted by the High Court not to dispose of
the application under Order 41 Rule 27 of the Code at the time of
disposal of the second appeal was not proper. The High Court
was required to deal with the application under Order 41 Rule 27
of the Code at the time of disposal of the second appeal. Since the
application under Order 41 Rule 27 of the Code was not decided
at the time of disposal of the second appeal, it will be difficult for
us to agree with the judgment of the High Court passed in the
second appeal. In this view of the matter and without going into
the merits of the judgment of the High Court passed in the second
appeal, we set aside the same and remit the case back to the High
Court for decision of the second appeal afresh along with the
application under Order 41 Rule 27 of the Code. We request the
High Court to decide the second appeal along with the
application for acceptance of additional evidence under Order 41
Rule 27 of the Code in accordance with law positively within two
months from the date of supply of a copy of this order without
granting any unnecessary adjournment to either of the parties.
4. Mr. Vijay Hansaria, learned senior counsel appearing for
the respondents, however, submitted that the application under
Order 41 Rule 27 of the Code could not be entertained by the
High Court as the appellants had failed to satisfy the conditions
laid down in Order 41 Rule 27 of the CPC for acceptance of
additional evidence. Since the application under Order 41 Rule
27 of the Code was not at all entertained by the High Court, it
would be inappropriate for us to deal with the said application at
this stage before a decision is arrived at by the High Court in the
second appeal.
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5. For the foregoing reasons, the impugned judgment of the
High Court is set aside and the appeal and the application under
Order 41 Rule 27 of the Code are directed to be decided within
the time indicated hereinabove. The appeal thus stands disposed
of. There will be no order as to costs.