If application under Order 41 Rule 27 CPC is undecided, then it is incumbent upon lower Appellate Court to decide such application along with main Appeal: P&H High Court

Read Order: Sham Lal v. Raja Ram 

Monika Rahar

Chandigarh, March 17, 2022: While dealing with a regular second appeal against the decision of the Lower Appellate Court, whereby the application of the plaintiff-appellant under Order 41 Rule 27 CPC was not decided with the main appeal, the Punjab and Haryana High Court has remanded the matter back to the lower Appellate Court for deciding the appeal afresh along with the application under Order 41 Rule 27 CPC. 

This legal pronouncement by the Bench of Justice Alka Sarin has come in light of the law laid down by the Supreme Court in State of Rajasthan Vs. T.N. Sahani & Ors., (2001) 10 Supreme Court Cases 619, wherein it was held that it is incumbent upon the lower Appellate Court to decide the application under Order 41 Rule 27 CPC along with the main appeal. 

The present appeal was preferred against the judgments and decrees passed by the lower Courts. The Trial Court dismissed the suit of the plaintiff-appellant for possession by way of specific performance. The lower Appellate Court partially reversed the judgment and decree of the Trial Court by granting alternative relief. 

Facts relevant to the present litigation were such that a suit was filed by the plaintiff-appellant for possession by way of specific performance of an agreement to sell a parcel of land. The Trial Court dismissed the suit, holding that the plaintiff-appellant was neither ready nor willing to perform his part of the contract. The plaintiff-appellant preferred an appeal before the lower Appellate Court against the judgment and decree of the Trial Court. 

During the pendency of the appeal, an application under Order 41 Rule 27 CPC was filed by the plaintiff-appellant for additional evidence primarily to show that the plaintiff-appellant had the capacity to pay. This application was ordered to be heard with the main case. However, at the time of hearing of the appeal, the said application was not decided and eventually the appeal was dismissed. Aggrieved by the said judgments and decrees passed by the Courts below, the present regular second appeal was preferred.  

The counsel for the plaintiff-appellant contended that an application for additional evidence under Order 41 Rule 27 of the CPC was moved by the plaintiff-appellant before the lower Appellate Court and the same was kept pending to be heard with the main appeal. However, at the time of the decision in the main appeal, the said application for additional evidence was not considered and no order regarding the same was passed. The counsel further contended that the said application for additional evidence was necessary in order to show his readiness and willingness to perform his part of the contract. 

On the contrary, the counsel for the defendant-respondent vehemently contended that at no point of time was it pointed out by counsel appearing before the Lower Appellate Court at the time of arguments that an application for additional evidence remained pending. The counsel further contended that the said application, even otherwise was not maintainable.  

After considering the rival submissions, the Court observed at the outset that a perusal of the record revealed that on October 14, 2011, an application for additional evidence was filed by the plaintiff-appellant and the case was adjourned to October 21, 2011, for filing of reply. On this date, the reply was not filed and the case was adjourned to November 4, 2011, reply and consideration and on this date, reply to the application for additional evidence was filed and the case was adjourned for consideration and for arguments on the main case to December 2, 2011. Thereafter, on various dates, the case was adjourned for arguments. The lower Appellate Court, while deciding the main appeal, did not deal with the application filed under Order 41 Rule 27 CPC. 

On the law governing the issue of the decision on Order 41 Rule 27 CPC application along with appeal, the Court made reference to T.N. Sahani’s Case (Supra).  Keeping in view the above-stated position of law and fact, the Court opined, “In the present case, since the application under Order 41 Rule 27 CPC remains undecided and as per the judgment of Hon’ble Supreme Court in the case of T.N. Sahani (supra) it is incumbent upon the lower Appellate Court to decide the application under Order 41 Rule 27 CPC along with the main appeal, I deem it appropriate to allow the present appeal and set aside the judgment and decree… passed by the Lower Appellate Court.”

Thus, the matter was remanded back to the lower Appellate Court for deciding the appeal afresh along with the application under Order 41 Rule 27 CPC.