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CASE NO.: Appeal (civil)  2349 of 2008

PETITIONER: Ramesh Chand and Anr

RESPONDENT: Ghaziabad Development Authority and Ors

DATE OF JUDGMENT: 31/03/2008

BENCH: TARUN CHATTERJEE & HARJIT SINGH BEDI

JUDGMENT: JUDGMENT                                          O R D E R

CIVIL APPEAL NO 2349 OF 2008 (Arising out of SLP (C) No.8287 of 2006)

1.      Leave granted. 2.      This appeal is filed against the final order dated 8th of  February, 2006 passed by the High Court of Judicature at  Allahabad in second Appeal No. 443 of 2005 by which the High  Court had dismissed the second appeal on the ground that  reappraisal of evidence was not permitted in deciding the second  appeal which was filed at the instance of the appellants.  3.      In our view, this appeal can be disposed of on a very short  question. It is an admitted position that during the pendency of  the second appeal, an application for acceptance of additional  evidence under Order 41, Rule 27 of the Code of Civil Procedure  was filed at the instance of the appellants, which, however, was  not decided at the time of disposal of the second appeal. In our  view, this procedure adopted by the High Court not to dispose of  the application under Order 41 Rule 27 of the Code at the time of  disposal of the second appeal was not proper. The High Court  was required to deal with the application under Order 41 Rule 27  of the Code at the time of disposal of the second appeal. Since the  application under Order 41 Rule 27 of the Code was not decided  at the time of disposal of the second appeal, it will be difficult for  us to agree with the judgment of the High Court passed in the  second appeal. In this view of the matter and without going into  the merits of the judgment of the High Court passed in the second  appeal, we set aside the same and remit the case back to the High  Court for decision of the second appeal afresh along with the  application under Order 41 Rule 27 of the Code. We request the  High Court to decide the second appeal along with the  application for acceptance of additional evidence under Order 41  Rule 27 of the Code in accordance with law positively within two  months from the date of supply of a copy of this order without  granting any unnecessary adjournment to either of the parties.  4.      Mr. Vijay Hansaria, learned senior counsel appearing for  the respondents, however, submitted that the application under  Order 41 Rule 27 of the Code could not be entertained by the  High Court as the appellants had failed to satisfy the conditions  laid down in Order 41 Rule 27 of the CPC for acceptance of  additional evidence. Since the application under Order 41 Rule  27 of the Code was not at all entertained by the High Court, it  would be inappropriate for us to deal with the said application at  this stage before a decision is arrived at by the High Court in the  second appeal.

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5.      For the foregoing reasons, the impugned judgment of the  High Court is set aside and the appeal and the application under  Order 41 Rule 27 of the Code are directed to be decided within  the time indicated hereinabove.  The appeal thus stands disposed  of.  There will be no order as to costs.