Judgment:
Vinod K. Sharma, J.
C.M. No. 6384C of 2009
1. This application under Order 22 Rule 4 read with Section 151 C.P.C. has been moved for bringing on record the legal representatives of respondent Roshan Lai, who is stated to have died lifter the decisiqn of appeal by the learned Addl. District Judge. For the reasons statedirr the application, persons named in para No. 2 of the application are ordered to be brought on record as legal representatives of deceased Roshan Lal-respon-dent, subject to all just exceptions.
Office is directed to carry out necessary correction in the memo of parties.
Mr. Sanjiv Peter, Advocate accepts notice on behalf of the newly added respondents.
This application under Section 151 of the Code of Civil Procedure has been moved on behalf of the applicant/appellant for placing on record Annexures P-l to P-ll. In absence of an application under Order 41 Rule 27 of CPC making out a case for leading additional evidence, there is no provision under law by which the documents can be placed on record in regular second appeal. The application is dismissed being not competent.
This regular second appeal is directed against the judgment and decree dated 26.3.2009, passed by the learned Courts below vide which suit filed by the plaintiff/respondent Roshan Lal for possession and mesne profit, stands decreed.
2. It is not in dispute, that the respondent is the owner of the property in dispute. The dispute is only as to whether the defendant/appellant is in unauthorized occupation or is a tenant. The learned trial Court while decreeing the suit for possession has also held, that the respondent/owner would be entitled to mesne profit for use and occupation of the shop in question @ Rs. 45,000/- per annum from 10.4.1994 till the possession of the shop in dispute is handed over. It is also not in dispute that no payment has been made by the appellant/defendant to the owner by way of rent or by way of mesne profits for use and occupation.
3. The learned Counsel for the appellant states, that appellant is willing to make the payment of assessed mesne profit w.e.f. 10.4.1994 till date, subject to the condition, that in case of success, the amount be refunded/adjusted against the future rent. The learned Counsel for the appellant prays for three week's time for payment of the mesne profit assessed to the plaintiff/respondent, subject to refund/adjustment in case of success in case.
4. In the appeal the substantial question of law raised is:
Whether the judgment and decree passed by the learned lower appellate Court without deciding an application moved under Order 41 Rule 27 of the CPC is sustainable in law?
The contention of the learned senior counsel for the appellant is, that the judgment and decree passed by the learned lower appellate Court cannot be sustained in view of the law laid down by the Hon'ble Supreme Court in the case of Jatinder Singh and Anr. Minor Through Mother v. Mehar Singh and Ors. 2009(1) R.C.R. (Civil) 253, wherein the Hon'ble Supreme Court has been pleased to lay down as under:
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 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.
In view of the law laid down by the Hon'ble Supreme Court in the case of Jatinder Singh and Anr. (Minor) Through Mother v. Mehar Singh and Ors. (supra) the substantial question of law is answered in favour of the appellant and against the defendant/respondents.
5. For the reasons stated, this appeal is allowed. The judgment and decree passed by the learned trial Court is set aside, subject to the condition that the amount of mesne profit assessed shall be paid by the defendant/appellant within three week's from today.
6. On furnishing of proof of deposit, the learned lower appellate Court shall redecide the appeal after disposing of the application for leading additional evidence. However, it is made clear, that in case the amount is not paid, as undertaken, this regular second appeal would be deemed to have been dismissed. The parties, through their counsel, are directed to appear before the learned lower appellate Court on 20.7.2009.