Judgment:
R.L. Anand, J.
1. This appeal succeeds on the short ground that the learned Distt. Judge while disposing of the appeal did not take into consideration the application under Order 41, Rule 27, C.P.C. which was moved by the defendant-appellant.
2. The brief facts of the case can be noticed in the following manners:-
3. Harnam Singh filed a suit for permanent injunction against Tehal Singh, Moti Singh and Thakur Singh, restraining the defendants from interfering in his possession over the suit land, fully described in the head note of the plaint. The case set up by the plaintiff was that the suit land was owned by Jagat Singh son of Ganda Singh and the plaintiff is his General Power of Attorney. He was in physical possession of the same. Khasra Girdawari was also in his name and the defendant No. 1 Tehal Singh with the help of other defendants wanted to dispossess him from the suit land without any right, title or interest. The suit was contested by the defendants and the stand of the defendant No. 1 was that he is in actual physical possession of the suit land and he is cultivating the same even during the left time of his father Bagga Singh and after his death as well.
4. From the above small pleadings of the parties, the following issues were framed by the trial Court:-
'1. Whether the plaintiff is in physical possession of the suit land as alleged? OPP.
2. Whether the plaintiff is entitled to the injunction prayed for? OPP.
3. Relief.'
5. The parties led evidence in support of their case and vide judgment and decree dated 6.10.1978, the Sub Judge, 1st Class, Ferozepur, decreed the suit of the plaintiff-respondent for permanent injunction as prayed for.
6. Aggrieved by the judgment and decree of the trial Court, Tehal Singh, defendant filed the first appeal in the court of the Additional District Judge, Ferozepur, who vide the judgment and decree dated 19.12.1979, dismissed the appeal and affirmed the judgment and decree of the trial Court.
7. The first appeal was filed in the Court of the District Judge on 18.11.1978. During the pendency of the appeal, defendant-appellant filed an application under Order 41, Rule 27, C.P.C. Notice of the application was given to the plaintiff-respondent who also filed the reply. When this application was put up before the learned Additional District Judge, Ferozepur on 22.9.1979, the following order was passed:-
'Present : Counsel for the appellant. Respondent in person.
Counsel for the appellant has filed application under Order 41 Rule 27 C.P.C. for additional evidence by submitting some documents. Copy of the application give to the respondent. Arguments on this application will be heard along with the main appeal. To come up on 25.10.1979 for arguments on the application and in the main appeal.
Sd/-
Addl. Distt. Judge,Ferozepur. 22.9.79.'
8. It appears that when the final arguments were heard, the learned Additional District Judge, did not take notice of the fact that earlier the application under Order 41, Rule 27, C.P.C. had also been filed by the defendant and it was bound to be disposed of either separately or alongwith the man appeal itself. A perusal of the main judgment and decree dated 19.12.1979 would show that the learned Additional District Judge, Ferozepur, did not take the notice of the said application nor it has passed any order one way or the other. Meaning thereby that, that application is yet to be disposed of at the first instance by the first appellate Court. Through the proposed additional evidence, the defendant-appellant wanted to show his physical possession over the property in dispute. With the non disposal of the said application, a serious prejudice has been caused to the defendant-appellant. It has been held in Jagir Kaur and Anr. v. Nirmal Singh and Anr., (1993-2)104 P.L.R. 374, as follows:-
'I have perused the judgments cited. None of the judgments cited have any bearing on the point in controversy. In Bank of Bihar's case (supra), the court has held that where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong. Similarly in Shastri Yagnapurushdasji's case (supra), the Court has held that no party should suffer for the mistake of the Court or its office ....' In Amar Singh's case (supra), it has been held that additional evidence can be allowed if required by the court to pronounce the judgment or to further substantial cause. The matter in dispute in the present case is entirely different. In this case, the appellants filed an application for additional evidence notice of which was given to the respondents for 13.12.1986. On the next date of hearing, reply was filed by the respondents and the matter was adjourned for arguments to 3.1.1987. The precise order reads as : 'Reply to the application for additional evidence filed. To come up for arguments on application for additional evidence as well as on merits on 3.1.1987 Sd/-. District Judge Ludhiana, dated 13.12.1986.' Consideration of this application somehow escaped the notice of the Court and perhaps for this reason there is no mention in the impugned judgment as to whether the same has been accepted or rejected. Whether the documents sought to be adduced have a material bearing on the matter in dispute or such an application satisfy the test stipulated under Order 41 Rule 27 of the C.P.C. is a matter which ought to have been examined by the Court. Had it been granted or declined and its consequences are now within the realms of imagination, any comment upon the admissibility of these documents would also amount to prejudging the same. Thus, on account of this lacuna, there is no course left open except to remit the papers back to the District Judge for a fresh decision. Accordingly, I accept the appeals on this short ground, set aside the judgments and decrees of the lower appellate Courts and remand the same for fresh adjudication. As observed earlier, the dispute between the parties is pending in one court or the other since 1970. Accordingly, I direct the District Judge to decide these appeals without any further delay, preferably within three months. The parties through their counsel are directed to appear before the District Judge, Ludhiana, on 1.6.1993.'
9. In this view of the matter, the present appeal is bound to be accepted and the case is bound to be remanded.
10. Resultantly, I allow this appeal, set aside the judgment and decree of the first appellate Court and the case is remanded to the first appellate with the directions to the appellate Court to re-admit the appeal to its original number and after giving notice to the parties, dispose of the appeal on merits as well as the application under Order 41, Rule 27, C.P.C. within six months from the receipt of the copy of the order. The defendant-appellant is directed to appear before the successor Court of 2nd Additional District Judge, Ferozepur, on 5.11.1999.
11. Copy dasti and a copy of the order be sent to the District Judge/ Additional District Judge, Ferozepur, for compliance.
12. The Registry is further directed to send the records of both the court below immediately for doing further needful into the matter.