Nisha Gupta, J. - (1.) THIS second appeal under Sec. 100 CPC has been filed against the judgment and decree dt. 27.04.2009 passed by Additional Civil Judge (J.D.) No. 4, Jaipur Metropolitan, Jaipur whereby the suit has been dismissed and against the judgment and decree dt. 05.12.2011 passed by Additional District Judge No. 6, Jaipur Metropolitan, Jaipur by which the appellate Court has partly allowed the appeal. The brief facts of the case are that plaintiff appellants filed a civil suit for perpetual and mandatory injunction which was dismissed and in appeal it has been ordered that respondent No. 1 should ensure that dirt should not go in the roots of the Peeple tree. The contention of the present appellants is that on 26.05.2011, he has moved an application under Order 41 Rule 27 CPC and without deciding the application the appeal has been decided which is a perversity and it is a fit case to be remanded back to the appellate Court.
(2.) HEARD the learned counsel for the appellants. None appeared on behalf of respondents. Perused the judgment and decree under appeal as well as the original record of the case. The record of the trial Court reveals that application under Order 41 Rule 27 CPC has been filed on 26.05.2011 which has not been disposed of by the Court below and reliance has been placed on Hakam Singh & Anr. v. State of Haryana & Ors., : AIR 2008 SC 2990 wherein it has been held in Para 5 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 cases 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. "
(3.) IN view of the above, the appeal is liable to be allowed.;