Lrs.Of Om Prakash vs Smt.Purnima & Anr on 5 December, 2008

S.B.C.S.A NO. 273/2008-L.Rs of Om Prakash vs. Smt. Purnima & Ors.   Order dt:5/12/2008

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              S.B.CIVIL SECOND APPEAL NO. 273/2008
              (L.Rs of Om Prakash vs. Smt. Purnima & Ors.)

                        DATE OF ORDER : 5/12/2008


               HON'BLE DR.JUSTICE VINEET KOTHARI


Mr.L.K.Purohit, for the appellant.
Mr.S.N.Pungalia, for the respondents.



1.      Heard learned counsels.

2.      Learned counsel for the appellant submits that though the first

appellate court had ordered on 15/11/2008 that the application under

Order 41 Rule 27 CPC would be considered at the time of final

hearing of the appeal but the said application escaped the notice of

first appellate court and first appellate court did not decide the said

application before deciding the appeal itself.

3.      He submitted that in the said application the defendant had

submitted that one shop had become available to the plaintiff

respondents for satisfaction of their personal need and same was

given to another tenant known as `Yash Collection'. Though reply to

the said application was filed by the plaintiff respondents, however,

in the absence of said application being decided, no evidence was

brought before the Court as to whether the said shop became
 S.B.C.S.A NO. 273/2008-L.Rs of Om Prakash vs. Smt. Purnima & Ors.   Order dt:5/12/2008

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available to the plaintiff respondents for their use or the already

existing tenant has changed the name of business and continued in the

same premises. This has caused prejudice to the appellant defendants

by non consideration of the application.

4.      Learned counsel for the appellant relied upon the decision of

Hon'ble Supreme Court in case of Hakam Singh & Anr. vs. State of

Haryana & Ors. - 2008 AIR SCW 5042, wherein, the Hon'ble Apex

Court has held that the application under Order 41 Rule 27 CPC is

required to be considered before the decision of the appeal and thus

the appeal decided without consideration of said application under

Order 41 Rule 27 CPC is required to be set aside.

5.      Consequently, this appeal is allowed and the order of the first

appellate court dated 22/7/2008 is set aside and appeal is restored to

the said appellate court for consideration of appeal afresh after

decision of application under Order 41 Rule 27 CPC. The first

appellate court shall redecide the appeal itself within one month from

today and parties are directed to appear before the first appellate court

on 15/12/2008.


                                                    (DR.VINEET KOTHARI), J.

item no.17
baweja/-