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PETITIONER: GURDEV SINGH & ORS.

       Vs.

RESPONDENT: MEHNGA RAM & ANR.

DATE OF JUDGMENT:       11/07/1997

BENCH: S. B. MAJMUDAR, M. JAGANNADHA RAO

ACT:

HEADNOTE:

JUDGMENT: Present:              Hon’ble Mr. Justice S. B. Majmuder              Hon’ble Mr. Justice M. Jagannadha Rao Munilal Verma,  Sr.  Adv.  Devender  Verma  and  Ms.  Naresh Bakshi, Advs. with him for the appellants. P.N.Puri, Adv. for the Respondents                          O R D E R The following Order of the Court was delivered:                          O R D E R      Leave granted.      We have  heard learned  counsel for  the parities.  The grievance of  the appellants  before us is that in an appeal filed by  them before the learned additional District Judge, Ferozepur, in  an application  under Order  XLI Rule  27(b), Code  of   Civil  Procedure  (CPC)  the  learned  Additional district Judge  at the  final hearing  of the appeal wrongly felt that  additional evidence  was required  to produced as requested by  the appellants  way of  examination of a hand- writing  expert.  The  High  Court  in  the  impugned  order exercising jurisdiction under Section 115, CPC took the view that the  order of  the Appellate Could not be sustained. In our view  the approach of the High Court in revision at that interim stage  when the appeal was pending for final hearing before  the   learned  Additional  District  Judge  was  not justified and the High Court should not have interfered with the order which was within the jurisdiction of the Appellate Court. The  reason is  obvious. The  Appellate Court hearing the matter  finally could  exercise jurisdiction  one way or the other  under Order  XLI Rule 27 specially clause (b). If the order  was wrong  on merits, it would always be open for the respondent  to challenge  same in accordance with law if an occasion  arises to  carry the  matter in  Second  Appeal after an  appellate decree  is passed.  But at  this interim stage, the  High Court should not have felt itself convinced that the  order was without jurisdiction. Only on this short question, without  expressing any  opinion on the merits the controversy involved  and on the legality of the contentions advanced  by  both  the  learned  counsel  for  the  parties regarding additional  evidence, we  allow this  appeal,  set aside the  order of  the High  Court.  In  the  result,  the

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Additional District  Judge, Ferozepur  shall now  decide the appeal on its own merits. We make it clear that the order of the  learned  Additional  District  Judge,  Ferozepur  dated 12.12.1995 shall  now  be  complied  with,  subject  to  the liberty reserved to the respondent as aforesaid.