Muzaffar Ali Vs. Dasaram - Court Judgment |
| Civil |
| Supreme Court of India |
| Jan-12-2009 |
| Civil Appeal No. 85 of 2009 (Arising out of SLP (C) No. 6241 of 2008) |
| Tarun Chatterjee and; H.L. Dattu, JJ. |
| 2009(1)ALT54(SC); 2009(3)AWC2479(SC); JT2009(1)SC324; 2009(4)MhLJ162(SC); (2009)6MLJ1137(SC); 2009(I)OLR(SC)1023; 2009(1)SCALE353; (2009)2SCC654 |
| Code of Civil Procedure (CPC) - Order 41, Rule 27 |
| Muzaffar Ali |
| Dasaram |
| Ashok K. Srivastav, Adv |
| Niraj Sharma, Advs. |
| Appeal allowed |
| From the Judgment and final Order dated 22.11.2007 of the High Court of Madhya Pradesh at Indore in S.A. No. 180 of 2007 |
civil - decision on merits - order 41 of the civil procedure code, 1908 (cpc) - application filed before appellate court by the appellant u/o.41, r.27, cpc was dismissed with reasons -appeal filed before high court by the appellant was dismissed with out considering the part of the order of the appellate court giving reasons for dismissal of the application - hence, present appeal - held, decision of high court set aside and directed to decide appeal on merits alongwith application and also consider the reasons for rejection given by the appellate court - appeal allowed - section 100 & order 41 rule 27: [tarun chatterjee & h.l.dattu,jj] second appeal high court while deciding second appeal, not considered a part of first appellate courts order rejecting appellants application under order 41 rule 27 - impugned judgment of high court was set aside and directions given to decide appeal afresh on merits and in accordance with law along with the application made under order 41, rule 27 by considering the reasons for its rejection given by first appellate court. .....had not considered a part of the order of the appellate court, by which the application filed by the appellant before the appellate court under order 41 rule 27 of the code of civil procedure was rejected. it is true that the first appellate court, while deciding the first appeal, had given reasons for rejection of the said application but the ground for such rejection was, as noted hereinabove, not considered by the high court.3. that being the position, we set aside the judgment of the high court and direct it to decide the appeal afresh on merits and in accordance with law along with the application under order 41 rule 27 of the cpc and the reasons given by the first appellate court for its rejection.4. the high court is now requested to decide the second appeal along with the application under order 41 rule 27 of the cpc on merits within a period of three months from the date of supply of a copy of this order. while deciding the same, the high court shall also consider the reasons for rejection of the application under order 41 rule 27 of the cpc given by the appellate court.5. the impugned order is, therefore, set aside. the appeal is allowed to the extent indicated.....
1. Leave granted.
2. In our view, the impugned order is liable to be set aside on a simple ground that while deciding the Second Appeal, the High Court of Madhya Pradesh had not considered a part of the order of the Appellate Court, by which the application filed by the appellant before the Appellate Court under Order 41 Rule 27 of the Code of Civil Procedure was rejected. It is true that the First Appellate Court, while deciding the First Appeal, had given reasons for rejection of the said application but the ground for such rejection was, as noted hereinabove, not considered by the High Court.
3. That being the position, we set aside the Judgment of the High Court and direct it to decide the appeal afresh on merits and in accordance with law along with the application under Order 41 Rule 27 of the CPC and the reasons given by the First Appellate Court for its rejection.
4. The High Court is now requested to decide the second appeal along with the application under Order 41 Rule 27 of the CPC on merits within a period of three months from the date of supply of a copy of this order. While deciding the same, the High Court shall also consider the reasons for rejection of the application under Order 41 Rule 27 of the CPC given by the Appellate Court.
5. The impugned order is, therefore, set aside. The appeal is allowed to the extent indicated above. There will be no order as to costs.