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CASE NO.: Appeal (civil)  3178 of 2008

PETITIONER: M/s. Eastern Equipment & Sales Ltd

RESPONDENT: ING. Yash Kumar Khanna

DATE OF JUDGMENT: 30/04/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT

O R D E R Non-Reportable  

 CIVIL APPEAL NO.3178 OF 2008 (Arising out of SLP)No.8565 of 2007)

1.      Delay condoned. 2.      Leave granted.   3.      Rejoinder Affidavit filed by the appellant be taken on  record.   4.      This appeal is directed against an order passed by a  learned Single Judge of the High court of Delhi at New Delhi in  CM(M) No. 41 of 2007 by which an order dated 05.10.2006  passed by the Appellate Court rejecting the petition filed by the  appellant in the pending appeal for acceptance of additional  evidence under Order 41 Rule 27 of the Code of Civil  Procedure was affirmed.   5.      We have heard learned counsel for the parties and after  considering the facts and circumstances of the present case,  we are of the view that in order to decide the pending appeal in  which the application under Order 41 Rule 27 of the Code of  Civil Procedure was filed ought to have been taken by the  appellate Court along with the application for acceptance of  additional evidence under Order 41 Rule 27 of the Code of Civil  Procedure.  In that view of the matter and without going into the  merits as to whether the application under Order 41 Rule 27 of  the Code of Civil Procedure was rightly rejected by the  Appellate Court as well as by the High Court, we set aside the  order of the High Court as well as of the appellate Court  rejecting the application under Order 41 Rule 27 of the Code of  Civil Procedure and we direct that the appellate Court shall  decide the pending appeal along with the application under  Order 41 Rule 27 of the Code of Civil Procedure on merits  within a period of three months from the date of supply of a  copy of this order to the appellate court.  The appeal is allowed  to the extent indicated above.  There will be no order as to  costs.   6.      The view that we have expressed can be supported by a  decision of this Court in the case of Jaipur Development  Authority vs. Kailashwati Devi 1997 (7) SCC 297.   7.      We make it clear that we have not gone into the merits of  the application under Order 41 Rule 27 of the Code of Civil  Procedure which is kept open to be decided by the appellate  court while deciding the appeal.