HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 78/2018 Ramsahay S/o Kishan Lal R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar ---Plaintiff/Appellant Versus 1. Murari Lal Sharma S/o Ramchand, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan (Deceased) 1/1. Smt. Geeta Sharma W/o Murari Lal, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan 1/2. Sonu S/o Late Murari Lal Sharma, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan 1/3. Monu S/o Late Murari Lal Sharma, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan 1/4. Santosh S/o Late Murarilal Sharma, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan 1/5. Neelam W/o Mukesh D/o Late Murari Lal Sharma, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan 1/6. Surendra S/o Late Murari Lal Sharma, R/o Bijwad Naruka, Sub-Tehsil Malakhed, Distt. Alwar Rajasthan ---Defendants-Respondents For Appellant(s) : Mr. Mohit Gupta, Adv. For Respondent(s) : Mr. Banwari Lal Sharma, Adv. HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Order 30/06/2025 1. This second appeal is directed against the judgment and decree dated 20.11.2017 passed by the Additional District Judge No.1, Alwar (hereinafter referred to as ‘the appellate Court’) in civil regular appeal No.161/2006, whereby the appellate Court partly disallowed the appeal filed by the appellant and while (2 of 4) [CSA-78/2018] setting-aside the judgment and decree dated 04.11.2006 passed by the Civil Judge (Junior Division) & Judicial Magistrate No.2, Alwar (hereinafter referred to as ‘the trial court’) in civil suit No.454/2000 to the extent of payment of damages to the tune of Rs.1,000/-, confirmed rest part of the judgment passed by the trial court. 2. Brief facts giving rise to this appeal are that the appellant- plaintiff filed a suit against the original defendant. The suit of the plaintiff was dismissed by the trial court. 3. Being aggrieved by the same, the appellant preferred an appeal before the appellate Court, which also came to be partly disallowed. The appellant therefore, has filed the present appeal. 4. Heard learned counsel for the parties and perused the material on record. 5. It is submitted by learned counsel for the appellant that an application under Order 41 Rule 27 CPC was filed before the appellate Court but the said application had not been decided by the appellate Court. Therefore, only on this count, the judgment and decree of the appellate court is liable to be set aside and the matter should be remanded to the appellate Court. 6. On the other hand, learned counsel for the respondent(s) fairly admits that the application under Order 41 Rule 27 CPC was filed by the appellant but the same has not been disposed of by the appellate Court. Learned counsel for the respondent(s) further submits that if the documents are taken on record, the appellant will not get any relief, so the appeal be heard on merits. 7. Indisputably, an application under Order 41 Rule 27 CPC was filed by the appellant before the appellate Court but the same has (3 of 4) [CSA-78/2018] not been decided by the appellate Court. In Hakam Singh & Anr. Vs. State of Haryana & Ors, AIR 2008 SC 1990 Hon’ble Apex Court has observed as under:- “That being the position, without going into the legality and propriety of the impugned order of the High Court passed in the aforesaid appeals, we set aside the same and remit back the case to the High Court for decision of the Appeals afresh on merits and in accordance with law along with the application for acceptance of additional evidence under Order 41 Rule 27 of the CODE.” 8. In Jatinder Singh Another Vs. Mehar Singh & Others (2009) 17 SCC page 465 Honble Apex Court in para No.4 has observed as under:- “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.” (4 of 4) [CSA-78/2018] 9. In the light of the aforesaid, the judgment and decree impugned is liable to be set aside and the matter is liable to be remitted to the appellate Court for a decision afresh. 10. Resultantly, the appeal is allowed. The judgment and decree dated 20.11.2017 passed by the Appellate Court in civil regular appeal No.161/2006 is set aside and the matter is remitted to the appellate Court to decide it afresh on merits along with the application under Order 41 Rule 27 of the Civil Procedure Code in accordance with the law. The parties are directed to remain present before the appellate Court on 21.07.2025. 11. The appellate Court is directed to decide the appeal along- with the application under Order 41 Rule 27 CPC as expeditiously as possible but not later than six months from the date of this Order. 12. The office is directed to send back the record alongwith a copy of this order, forthwith. (NARENDRA SINGH DHADDHA),J Gourav/83