JUDGMENT
N.K. Kapoor, J.
1. This judgment shall dispose of Regular Second Appeals No, 742 and 745 of 1988 as identical question of facts and law are involved in both these appeals
2. Noting the following contention of the counsel, the appeal was admitted by the motion Bench.
“Mr. Sarin inter alia contends that, before the lower appellate Court an application under Order 41 Rule 27, C PC., was filed. The same has not been decided by the learned District Judge. Notice ”
3. The learned counsel for the appellants has urged the same point for consideration without adverting to the merit of the case by vehemently contending that the Court despite having ordered vide zimni order to hear the application for additional evidence at the time of final disposal of the appeal, somehow not decided the same which has greatly prejudiced the case of the plaintiffs. The counsel further urged that documents sought to be adduced by way of additional evidence have, in fact, material bearing upon the case and otherwise too those are copies of the official record and are thus reliable. In any case, since the lower appellate Court has not adverted to the merit of the plea, relevancy admissibility or whether permission sought was to be granted or declined is presently not subject matter of adjudication The counsel accordingly prayed that in view of the admitted position that application for additional evidence has not been decided by the District Judge, the impugned orders are liable to be set aside and the case be remanded to the lower appellate Court for fresh adjudication directing the Court to decide the pending application for additional evidence.
4. The counsel for the respondents has strenuously opposed the plea of the counsel, for the appellants. According to the counsel, the matter in dispute is being prolonged on one or the other pretext Earlier too, the case came up for consideration before this Court and that time too S.S. Sodhi. J. without adverting to the merits of the case chose to remand for fresh decision solely on the ground that the then Additional District Judge had earlier expressed his disinclination to decide the appeals and made a request for transfer of the case to some other Court but his request was declined by the District Judge and thus the appeals were decided by the same Additional District Judge.
5. The counsel for the respondents further urged that the parties arc litigating since the year 1970. The documents now sought to be adduced by way of additional evidence was within the knowledge of the appellants. Even a bare perusal of the application does not satisfy the strict test as envisaged by Order 41 Rule 27 of She Code of Civil Procedure On the facts of the present case it would indeed, be safe to infer that the lower appellate Court found no merit in this application and so such an application should be deemed to have been dismissed. In support of his contention, the counsel relied upon the judgment reported as Bank of Bihar v. Mahabir Lal, A. I. R. 1964 S. C. 377, Shastri Yognapurushdasji v. Muldas Bhundardas Vaishya, A. I. R. 1966 S. C. 1119 and Amar Singh v. Sheo Narain, 1993 P. L. J. 113.
6. I have perused the judgments cited. None of the judgments cited have any bearing on the point in controversy. In Bank of Bihar’s case (supra), the Court has held that where a statement appears in the judgment of a Court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless both the parties to the litigation agree that the statement is wrong. Similarly, in Shastri Yagnapurushdasji’s case (supra), the Court has held that no party should suffer for the mistake of the Court or its office…..” In Amar Singh’s case (supra), it has been held that additional evidence can be allowed if required by Court to pronounce the judgment or to further substantial cause. The matter in dispute in the present case is entirely different. In this case, the appellants filed an application for additional evidence notice of which was given to the respondents for 13-12-1986. On the next date of hearing, reply was filed by the respondents and the matter was adjourned for arguments to 3-1-1987. The precise order reads as “Reply to the application for additional evidence filed. To come up for arguments on application for additional evidence as well as on merits on 3-1-1987 Sd./- District Judge Ludhiana, dated 11-12-1986.” Consideration of this application somehow escaped the notice of the Court and perhaps for this reason there is no mention in the impugned judgment as to whether the same has been accepted or rejected. Whether the documents sought to be adduced have a material b aring on the matter in dispute or such an application satisfy the test stipulated under Order 41 Rule 27 of the C.P.C. is a matter which ought to have been examined by the Court. Had it been granted or declined and its consequences are now within the realms of imagination, any comment upon the admissibility of these documents would also amount to prejudging the same. Thus on account of this lacuna, three is no course left open except to remit the papers back to the District Judge for a fresh decision. Accordingly, I accept the appeals on this short ground, set aside the judgments and decrees of the lower appellate Courts and remand the same for fresh adjudication. As observed earlier, the dispute between the parties is pending in one Court or the other since 1970, Accordingly, I direct the District Judge to decide these appeals without any further delay, preferably within three months. The parties through their counsel are directed to appear before the District Judge, Ludhiana, on 1-6-1993.