JAIN, J. - (1.) HEARD learned counsel for both the parties.
(2.) THE plaintiff-appellants filed a suit for permanent injunction and injunction in mandatory form in respect of the disputed `bada' as well as the disputed gate. THE lower court decreed the suit of the plaintiff-appellants in respect of the disputed gate marked as "x". Being aggrieved with the same, an appeal was preferred by defendant Madan Lal before the District & Sessions Judge, Jaipur District, Jaipur, which was transferred for its disposal to the court of Additional Civil Judge & Additional Chief Judicial Magistrate No. 1, Jaipur District, Jaipur, which was registered as Civil Regular Appeal No. 38/1984. THE first appellate Court, vide its judgment dated 5. 3. 1986, allowed the appeal and set aside the judgment and decree dated 30. 3. 1984 passed by the Munsiff & Judicial Magistrate, 1st Class, Chomu, District Jaipur, in Suit No. 19/80. Hence, this second appeal has been preferred by the plaintiff-appellants. This Court, while admitting the second appeal on 18. 8. 1987, framed following substantial questions of law:- " 1. Whether, in the facts and circumstances of the case and in the light of the statement of DW-1, Jagdish, it is a case of misleading of the evidence? 2. Whether on the admitted facts the court has drawn the wrong inference? 3. Whether in the facts and circumstances of the case it can be said that the appellate Court has disturbed the finding regarding possession? 4. Whether the Court below has committed error in acting on the application under Order 41 Rule 27 C. P. C. ?" Learned counsel for both the parties have argued their case at length on merits as well as on question No. 4 relating to application under Order 41 Rule 27 of the C. P. C. I have considered the submissions of learned counsel for both the parties and minutely scanned the impugned judgments as well as the record of both the courts below. The order-sheet dated 1st of February, 1986 of the first appellate Court shows that the defendant, who was the appellant before the first appellate Court, filed an application under Order 41 Rule 27 of the C. P. C. , a copy of which was given to opposite-party also and case was fixed for reply and argument of the application as well as arguments on the appeal itself. Thereafter the case was adjourned to 8. 2. 1986, 10. 2. 1986, 11. 2. 1986, 15. 2. 1986 and 21. 2. 1986. The final argument in the matter before the first appellate Court were heard on 5th of March, 1986, and the judgment was dictated in open court. The first appeal filed by the defendant was allowed and the judgment of the lower court dated 30. 3. 1984 was set aside.
(3.) LEARNED counsel for the plaintiff-appellants contended that the application under Order 41 Rule 27 of the C. P. C. was filed by the defendant before the first appellate Court on 1st February, 1986, whereby two documents i. e. judgment dated 23. 7. 1984 passed by the Assistant Collector, Amer, and copy of the map dated 17. 2. 1965 were filed but the said application was not decided before hearing final arguments of the appeal. He contended that the learned first appellate Court in its judgment has referred and relied upon the aforesaid documents, which were filed along with the application, without deciding the said application. He contended that it was the duty of the first appellate Court to decide the application under Order 41 Rule 27 of the C. P. C. first and in case the application was to be allowed then an opportunity ought to have been given to the opposite-party to file documents in rebuttal, therefore, the learned first appellate court has committed an illegality in not affording an opportunity to the appellant in respect of documents which were filed along with an application under Order 41 Rule 27 of the C. P. C. by defendant and in these circumstances the judgment of the first appellate Court is liable to be set-aside. In support of his contentions, he referred to the decision in Hazarilal vs. Nagar Parishad, Alwar (AIR 1976 Rajasthan 91) = (1975 RLW 561 ). He, therefore, contended that without prejudice to other rights of the appellants to contend on other questions of law formulated in the present case, it will be just and proper as well as in the interest of justice to remand the case to the first appellate Court to decide the application under Order 41 Rule 27 of the C. P. C. first and to re-hear the appeal on merits afresh. Learned counsel for the defendant-respondents, Shri A. K. Bajpal, fairly conceded this fact that application was filed by the defendant before the first appellate court under Order 41 Rule 27 of the C. P. C. , on 1. 2. 1986 and the same was not disposed of before hearing final arguments of the appeal, by the first appellate Court. He also admitted that the documents annexed with the application have been referred and relied upon by the first appellate Court in the impugned judgment. I have considered the submissions of the learned counsel for both the parties and I find that the defendant filed an application under Order 41 Rule 27 of the C. P. C. , on 1. 2. 1986 and the same was not disposed of. Learned counsel for both the parties further agree that the said application has not been decided even in the final judgment dated 5. 3. 1986, whereby the appeal itself was decided. I further find that the plaintiffs also filed an application dated 1. 3. 1986 under Order 41 Rule 27 read with Section 151 of the C. P. C. , which is available on the file, but there is no reference of the said application also in the order-sheet of the file of the first appellate Court. Learned counsel for the plaintiff-appellants submits that the said application was filed but it was also not decided by the first appellate Court. ;