G. Shashikala (Died) Through Lrs. vs G. Kalawati Bai(Died) Through Lr

CIVIL APPEAL Nos.3969­3970 OF 2019 (Arising out of S.L.P.(C) Nos.30911­30912 of 2018)

G. Shashikala (Died) Through L.Rs. ….Appellant(s)

VERSUS

G. Kalawati Bai(Died) Through L.R. & Ors. ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are filed against a common Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2019.04.16 judgment and order dated 26.09.2018 passed by 16:51:39 IST Reason:

the High Court of Judicature at Hyderabad for the

1 State of Telangana and the State of Andhra Pradesh

in CCCA No.40 of 2002 and TRCCA No.168 of 2003

whereby the High Court dismissed both the appeals

filed by the appellants herein.

3. A few facts need mention hereinbelow for the

disposal of these appeals, which involve a short

point.

4. The appellants herein are the legal

representatives of the original defendants and the

respondents are the plaintiffs of the two suits being

O.S. No. 1402 of 1992 and O.S. No.432 of 1993.

5. One suit was for declaration of title and

delivery of possession of a major portion of the suit

house and other was for grant of perpetual

injunction in relation to the suit house.

6. The Trial Court by judgment/decree dated

21.01.2002 decreed the title suit and passed a

decree for possession but dismissed the suit for

grant of perpetual injunction.

2

7. This led to filing of two first appeals in the

High Court of A.P. During pendency of the appeals,

the appellants (defendants) filed an application (IA

No.5/2011) under Order 41 Rule 27 of the Code of

Civil Procedure, 1908 (hereinafter referred to as “the

Code”) and the respondents (plaintiffs) also filed an

application (IA No.428/2011) under Order 41 Rule

27 of the Code.

8. By these two applications, parties prayed

permission from the Appellate Court to file

additional evidence (documents) in support of their

case.

9. By order dated 11.07.2016, the High Court

allowed the application filed by the respondents (IA

No. 428/2011) and also admitted the documents in

evidence and directed that the impact of the

additional evidence admitted in evidence will be

examined while hearing the main appeal. So far as

3 IA No.5/2011 filed by the appellants is concerned,

no order was passed.

10. By impugned order, both the appeals were

dismissed by affirming the judgment/decree of the

Trial Court, which has given rise to filing of the two

appeals in this Court after obtaining the special

leave to appeal.

11. So the short question, which arises for

consideration in these appeals, is whether the High

Court was justified in dismissing the appeals.

12. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are constrained to allow these appeals and while

setting aside the impugned order, remand the case

to the High Court for hearing the appeals afresh on

merits in accordance with law.

13. In our considered opinion, the need to remand

the case to the High Court has occasioned for the

reason that the High Court committed jurisdictional

4 error while deciding the application filed by the

respondents under Order 41 Rule 27 of the Code

(428/2011) separately.

14. The question as to how the application filed

under Order 41 Rule 27 of the Code in the appeal

should be decided by the Appellate Court remains

no more res integra and stands decided by the three

decisions of this Court in North Eastern Railway

Administration, Gorakhpur vs. Bhagwan

Das(Dead) by L.Rs., (2008) 8 SCC 511(See paras

13­17), Shalimar Chemical Works Limited vs.

Surendra Oil & Dal Mills(Refineries) & Ors.,

(2010) 8 SCC 423 (See para 16) and Corporation of

Madras & Anr. vs. M. Parthasarathy & Ors., 2018

(9) SCC 445 (See paras 11­15).

15. Unfortunately, the High Court while deciding

the application (428/2011) filed by the respondents

under Order 41 Rule 27 of the Code did not notice

5 the law laid down in the aforementioned three

decisions and proceeded to decide the

application/appeals and thus committed a

jurisdictional error.

16. In view of the foregoing discussion, we are

unable to concur with the approach, reasoning and

the conclusion arrived at by the High Court in the

impugned order calling for interference by this

Court.

17. The appeals, therefore, deserve to be allowed

and are accordingly allowed. The interim order

dated 11.07.2016 by which the application under

Order 41 Rule 27 of the Code was allowed and the

final order impugned herein are set aside.

18. The case is remanded to the High Court for

deciding the two first appeals, out of which these

appeals arise, afresh including the two applications

filed by the parties to the appeals under Order 41

Rule 27 of the Code on their respective merits

6 keeping in view the law laid down in the above­

mentioned three decisions insofar as it deals with

disposal of the application of Order 41 Rule 27 of

the Code and decide the appeals on merits in

accordance with law uninfluenced by any

observations made in the impugned order and in

this order.

.………...................................J. [ABHAY MANOHAR SAPRE]

…...……..................................J. [DINESH MAHESHWARI]

New Delhi;

April 16, 2019

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