Gurdev
Singh & Ors Vs. Mehnga Ram & ANR [1997] INSC 601 (11 July 1997)
S. B.
MAJMUDAR, M. JAGANNADHA RAO
ACT:
HEADNOTE:
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 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.
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