Instant civil revision assailed the judgment/order dated 14.7.2005 passed by the learned Additional District Judge Mandi Baha-ud-Din, whereby petitioner's application under Order XLI Rule 27 CPC was dismissed, pending his appeal.
2. Succinctly, relevant facts are that the petitioner filed a suit for possession through pre-emption being "Shafi Sharik", "Shafi Khalif and "Shafi Jar" against the sale in favour of the respondents and at the close of the case the petitioner moved an application under Order XIII Rule 2 CPC before the trial Court for permission to produce the copies of "Fard Jamabandi" for the year 1991-92 and "Aks Shajra, Killa Bandi" pertaining to suit land of Square No, 130, by way of additional evidence. Ground in support of the prayer made, as that there was two copies of "Fard Jamabandi" on the file one related to Khata No, 328 whereas the other was about all the Khatas of the suit land and out of inadvertence, one of the Jamabandi, was tendered in evidence as Ex. P. 4 and the other which was most relevant to the controversy could not be exhibited. Similarly, there was two copies of "Aks Shajra", one of those was tendered in evidence as Ex. P. 8 and the other inspite of being on the file, could not be tendered in evidence through oversight. This application was dismissed by the learned Civil Judge on 13.7.2004.
3. Petitioner being aggrieved of the dismissal of his application for additional evidence by the trial Court, filed revision petition before the learned Additional District Judge but. the same was not entertained on the ground that documents sought to be produced were not appended therewith, vide judgment dated 12.10.2004. Thereafter, petitioner's suit was dismissed by the trial Court vide judgment/decree-dated 1.11.2004.
4. Petitioner filed an appeal before the learned Additional District Judge Mandi Baha-ud-Din where along, he again moved an application under Order XLI Rule 27 CPC asserting verbatim the same ground as taken by him in his application before the trial Court. The learned Additional District Judge keeping the appeal of the petitioner pending dismissed his petition and respondents in response to notice by this Court have appeared and were represented through their counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. Under law application of the petitioner under Order XLI Rule 27 of the CPC could not have been dismissed in isolation from his appeal as this course was opposed to the spirit of the provisions of Order XLI Rule 27 CPC whereunder appellate Court while hearing appeal may need/feel necessity of documents sought to be produced for just/fair decision of the case. Though petitioner's revision petition was dismissed by the learned Additional District Judge on 12.10.2004 on technical ground of non availability of documents prayed to be produced in additional evidence and the same was not decided on merit, yet the learned Additional District Judge while dismissing the application in hand did not bother to look into the contents of the application. The petitioner had asserted that the original documents sought to be produced by way of additional evidence were already on the file but could not be tendered in evidence through oversight. There were two alike documents of different nature on the file and one of those was exhibited and the other remained out of sight. The impugned order revealed that the learned Civil Judge proceeded to dismiss the application of the petitioner on the assumption that the petitioner has not produced those documents at all, inspite of availing repeated opportunities in this behalf. Trial Court was of the view that since the petitioner did not produce these documents at relevant time, he was not entitled to the relief prayed but the record was otherwise, as noted above. Likewise the appellate Court incorrectly dismissed the application under Order XLI Rule 27 of the CPC on the ground that the order of the trial Court was maintained on revision vide order dated 12.10.2004, thus the same cannot be re-opened, being oblivious of the provisions of Section 105 CPC and the fact that the petitioner's revision petition was not decided on merits and was dismissed on technical ground.
Learned counsel for the respondent confronted with this situation, expressed his willingness to the effect that this revision petition may be accepted and petitioner's application under Order XLI Rule 27 CPC may be directed to be decided afresh by the First Appellate Court alongwith the appeal of the petitioner.
6. For the reasons noted above, order 14.7.2005 passed by the learned Additional District Judge Mandi Baha-ud-Din being tainted with material illegalities/irregularities is not sustainable at law and consequently the same is set-aside by accepting the instant revision petition, with the result that petitioner's application under Order XLI Rule 27 of the CPC shall be deemed to be pending and shall be decided afresh alongwith his appeal by the learned Additional District Judge. There will be no order as to costs.