IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 651 of 2011
Md. Azim ...... Petitioner
Versus
Nagendra Prasad & ors. ...... Respondents
CORAM: HON'BLE MR. JUSTICE D.N. PATEL
For the Petitioner : Mr. V. Shivnath, Sr. Advocate
Mr. Rajesh Lala, Advocate
For Respondent Nos. 1 to 3 : Mr. Indrajit Sinha, Advocate
For Respondent Nos. 7 & 8 : Mr. Mrinal Kanti Roy, Advocate
th
03/Dated: 10 March, 2011
1.
Learned senior counsel appearing for the petitioner submitted that the
present writ petition has been preferred against the order passed by learned
Additional District Judge, Fast Track CourtV, Dhanbad dated 24th July, 2010 in
Title Appeal No. 86 of 2009, whereby the additional evidence laid by the present
petitioner (appellant in Title Appeal No. 86 of 2009) has been ordered to be
considered at the time of final hearing of the said appeal.
2. Having heard learned counsels for both sides and looking to the facts and
circumstances of the case, it appears that:
(i) The mother of the respondent nos. 4, 5 and 6 has instituted Title
(Eviction) Suit No. 24 of 1996 mainly on the ground of default in
payment of rent. The suit is decreed and, therefore, the present petitioner
has preferred Title Appeal No. 86 of 2009 before the lower appellate
court.
(ii) It further appears from the facts of the case that one of the substituted
plaintiffs has entered into compromise with the petitioner, during the
pendency of the title eviction suit. Thus, document is to be presented
before the lower appellate court and, therefore, the present petitioner
(appellant in Title Appeal No. 86 of 2009) has preferred an application
under Order XLI Rule 27 of the Code of Civil Procedure.
(iii) It further appears that this application has been disposed of and it
has been decided that the contention raised by the appellant to produce
additional evidence will be decided at the time of final hearing of the title
appeal.
(iv) Learned counsel for the respondents submitted that the document,
which is presented by the petitioner (appellant in Title Appeal No. 86 of
2009) ought to be considered as per Order XLI Rule 27 of the Code
2
of Civil Procedure at the time of final hearing. To this proposition of law,
learned senior counsel for the petitioners has no objection, but, it is
vehemently submitted by learned senior counsel for the petitioner that the
document presented before the lower appellate court ought to be
considered and and it cannot be brushed aside because it is presented at
the appellate stage.
3. In view of the aforesaid facts, the document, which is presented by the
petitioner (appellant in Title Appeal No. 86 of 2009) i.e. compromise entered
into between one of the plaintiffs and the petitioner shall be considered as per
provision of Order XLI Rule 27 of the Code of Civil Procedure, at the time of
hearing of Title Appeal No. 86 of 2009.
4. The writ petition is allowed to the aforesaid extent.
(D.N. Patel, J.)
Ajay