Jatinder Singh & Anr.Minor Tr.Mother vs Mehar Singh & Ors

Jatinder Singh & Anr. Minor Through Mother ... Appellants VERSUS Mehar Singh and Others ...Respondents WITH

CONTEMPT PETITION ) NO.57 of 2008 IN SLP)NO.18759 OF 2006

Balbir Singh & Anr. ..Appellants

Versus

Jatinder Singh & Anr. ...Respondents

ORDER

1. Leave granted.

2. This appeal is directed against the judgment and final order

passed by the High Court of Punjab and Haryana at

Chandigarh in Regular Second Appeal No. 4174 of 2002, by

which the second appeal filed by the appellants was dismissed

as the High Court did not find any substantial question of law

to be decided in the aforesaid second appeal. 1 2

3. In our view, this appeal can be decided on a very short

question. The trial court as well as the appellate court and

finally the High Court in the second appeal dismissed the suit

filed by the plaintiffs/appellants for declaration challenging the

sale deed dated 29th of May, 1989, executed by the respondent

Nos. 1 to 3 in favour of respondent Nos. 9 and 10 as well as

the compromise (Exhibit No. C1) dated 7th of April, 1986 in a

suit title Ujagar Singh vs. Puran Singh, But it is an admitted

position that before the High Court, the appellants filed an

application under Order 41 Rule 27 of the Code of Civil

Procedure for acceptance of additional evidence, namely,

documents such as certificate of Military service, voter list of

concerned assembly segment for the year 1982, receipt of

house tax 1988-89, payment of chaowkdra of khariff 1986,

rabi 1990, rabi 1991, khariff 1992, identity card issued by

Election Commission of India, Ration Card etc.

4. While deciding the second appeal, however, the High Court

had failed to take notice of the application under Order 41 Rule

27 of the Code of Civil Procedure and decide whether

additional evidence could be permitted to be admitted into

evidence. In our view, when an application for acceptance of 2 3

additional evidence under Order 41 Rule 27 of the Code of

Civil Procedure was filed by the appellants, it was the duty of

the High Court to deal with the same on merits. That being the

admitted position, we have no other alternative but to set aside

the judgment of the High Court and remit the appeal back to it

for a decision afresh in the second appeal along with the

application for acceptance of additional evidence in accordance

with law.

5. For the reasons aforesaid, the impugned Judgment is set aside.

The appeal is thus allowed to the extent indicated above.

There will be no order as to costs.

6. We make it clear that we have not gone into the merits as to

whether the application for acceptance of additional evidence

under Order 41 Rule 27 of the Code of Civil Procedure should

be allowed or not, which shall be decided by the High Court at

the time of decision of the second appeal in accordance with

law. We also make it clear that we have not gone into the

merits of the second appeal which shall also be decided by the

High Court along with the application under Order 41 Rule 27

of the Code of Civil Procedure. Considering the facts and

circumstances of the case, we request the High Court to 3 4

dispose of the second appeal at an early date preferably within

six months from the date of supply of a copy of this order to it.

7. In view of the order passed in C.A.No. of 2008 @

SLP)No.18759 of 2006, Contempt Petition ) No.57 of 2008

is disposed of.

8. In view of our decision in the appeal itself, we do not feel

inclined to entertain the Interlocutory Application filed by the

petitioner during when the matter was kept for Judgment.

Accordingly, the said application for interim direction is

disposed of as infructuous.

...........................J. [TARUN CHATTERJEE]

New Delhi ..................... .......J. September 19, 2008. [AFTAB ALAM]

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