Aniruddha Dayal Agrawal And ANR. v. Raghunandanlal

IN THE HON'BLE HIGH C

RT OF CHHA'ITISGARH AT BILASPUR '

W.P.

NO.

§ PETITIONERS 1] Aniruddha Dayal Agrawal, S/o.

APPELLANTS Madho Dayal (wrongly typed as 7DEFENDANTS "Madhu Dayal"), aged about 79 years, R/o. ward No.8, Arang, Police Station Post Arang, Civil Revenue District Raipur (C..G.) // w Smt.

Ahily Bai, W/o.

Aniruddha Dayal Agrawal, aged about 70 years, R/o. Ward No.8, Arang, Police Station Post Arang, Civil Revenue District Raipur (C.G.)

VERSUS

/ Raghunandanlal, S/o/Ba'ikunthlal, R ESPONDENT PI ATNTIFF aged about years, R/o.

Rajim, Police Station and Post Rajim, Civil and Revenue Di/strig/Raipur (C.G.) WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA J

@ IGH COURT OF CHHATTISGARH AT BILASPUR (Hon. Mr. Justice Pritinker Diwaker) Writ Petition (227) No. 151 of 2014 PETITIONERSI Aniruddha Dayal Agrawal and DEFENDANTS another _VERSUS Raghunandanlal RESPONDENT] "

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PLAINTIFF Writ Petltlon (227) No Aniruddha Dayal Agrawal and PETmONERSI - another DEFENDANTS -

VERSUS

RESPONDENT] _ ,_ Raghunandanlal '

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PLAINTIFF Shri Vaibhav GoVerdhan counsel for the petitioner in both the cases Shri Anurag Dayal Shrlvastava counsel respondent In both the cases WRIT PETITIONS UNDER ARTICLE OF THE CONSTITUTION OF INDIA.

ORDER

(06.05.2015) The petitions, two number, are disposed this common order as order challenge therein dated 12.2.2014 passed by District Judge, Raipur is one and the same. 2.'

The suit filed by the respondent/plaintiff for eviction, mesne profit and possession was decreed vide judgment and decree

@ dated 30.4.2010 passed Civil Judge Class I Raipur.

The k preferred against this judgment decree petitioners/defendants said pending adjudication before the District Judge, Raipur. During pendency of the appeal, the petitioners/defendants moved an appiication under Order XLI Rule read with Section vide Annexure P-8 producing additional ei/idence.

Subsequently, an application Vi',_R Orde __ule'

'17 CPC Twas also filed petitioners/defendants amend written statement on basis of additional evidence to be adduced by them. Vide order dated 12.2.2014 Court below has rejected both applications filed 'the'

petitioners/defendants a common order which is under challenge herein.

3.

Counsel the"petitioners/defendants submits that application under Order XLI Rule 27 read with Section 151 CPC can only decided along with not separately.

Likewise, according counsel petitioners, application med Order VI Rule seeking amendment in the written statement at the stage of appeal can also be decided at the time of deciding the appeal. ln support of his submission, counsel for the petitioners placed his reliance on the decision of the Apex Court in the matter of Union of India v. Ibrahim Uddin and another reported 2013 AIR SCW 2752 that High Court of Madhya Pradesh

Khemchand Mulchand v.

Government of Madhya Pradesh, Bhopal reported in 1972 MPLJ 524.

4.

On the other hand, counsel for the respondent supports the order impugned and submits that the same being in accordance with law does not require any interference in these petitions. 5.

Heard counsel forthe parties and perused the documents on record.

6.

lt is a settled legal position that application under Order XLI- '

Rule 27 CPC filed during pendency of first appeal should not be '

decided before hearing on merits. Appeal must be heard on merits then appellate Court required » consider whether application production additional evidence should bealIOWed or not.

lf such application is allowed then the appeal has to be heard again on merits after reception of additional evidence. Likewise, the application filed under Order Vl Rule at appellate stage also required considered along with appeal being decided on merits. 7.

Thus keeping in view the aforesaid factual position and the law laid down the Apex Court State Rajsthan v.

T.N. Sahani and others reported in (2001) 10 SCC 619, in the matter of Eastern Equipment & Sales Limited v. ING. Yash Kumar Khanna reported in (2008) 12 SCC 739, in the matter of Union of India v. Ibrahim Uddin and another (supra), 'c'xi'ig, ..

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\\ t kiwiw"

§ % yti (4 Khemchand Mulchand v.

Government Madhya Pradesh, Bhopal (supra) and in the matter of Abhay Kumar Nathu Lal Jain v.

Santosh Kumar Madan Lal Naik reported in (2001) 1 Civil L.J. 70, this Court is of the opinion that the order impugned dated 12.2.2014 is liable to be set aside. It is done accordingly. Applications filed by the petitioners/defendants under Order XLI Rule 27 read w1th Section 151 as well as the one Orderule are restored their originai R '

number. Appeiiate Court is directed to decide those applications along with appeal. As said pending since 2010, let it be decided within two months from the date of receipt of Copy of this order.

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8.

Petitions are alldWed.

Sd/- Pritinker Diwaker Judge