1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original plaintiff to quash and set aside the impugned judgment and order passed by the learned Presiding Officer, 7th Fast Track Court, Junagadh dated 31/03/2008 in Regular Civil Appeal No. 10/1997 by which the learned appellate Court has dismissed the appeal preferred by the appellant-original plaintiff confirming the judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Junagadh dated 30/12/1996 dismissing Regular Civil Suit No. 661/1986.
2. At the outset, it is required to be noted that as the present Second Appeal deserves to be allowed by quashing and setting aside the impugned judgment and order passed by the learned appellate Court and the same is required to be remanded to the learned appellate Court for the reasons stated hereinafter. This Court is not further considering the case on merits and narrating the facts in detail.
3. It appears that the appellant-original plaintiff instituted Regular Civil Suit No. 661/1986 in the Court of learned Civil Judge (Senior Division), Junagadh against the respondents- original defendants for declaration and permanent injunction and basically claiming permanency and permanent appointment on the post in question on which he was appointed. The learned trial Court dismissed the said suit vide judgment and decree dated 30/12/1996. Being aggrieved and dissatisfied with the judgment and decree passed by the learned 4th Joint Civil Judge (Senior Division), Junagadh dated 30/12/1996 in Regular Civil Suit No. 661/1990 the appellant- original plaintiff preferred Regular Civil Appeal No. 10/1997 before the learned District Court, Junagadh. It appears that in the appeal, the appellant-original plaintiff submitted the application for additional evidence at Exh. 35 under Order 41 Rule 27 of the Code of Civil Procedure and the learned appellate Court permitted the appellant-original plaintiff to produce the documents by way of additional evidence, documents produced at Mark 35/1 to Mark 35/13, which was exhibited and still the learned appellate Court has passed the impugned judgment and order dismissing the appeal confirming the judgment and decree passed by the learned trial Court without considering the additional evidence/documents. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the appellant-original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure. While admitting the present Second Appeal, the learned Single Judge framed the following substantial questions of law for consideration in the present Second Appeal.
[a] Whether the appellant is entitled to get the right of permanency, because of his continuous service of 22 years?
[b] Whether the Appellate Court has committed error in not looking into the documents which are produced by giving an application under Order 26 Rule 27 of Code of Civil Procedure?
[c] Whether the Appellate Court has committed error by not looking into the fact that the appellant is already called for by Selection Committee for interview in the year of 2004?
4. Ms. Mandavia, learned advocate appearing on behalf of the appellant-original plaintiff has vehemently submitted that despite the fact that the appellant-original plaintiff was permitted to produce additional documents/evidence under Order 41 Rule 27 of the Code of Civil Procedure and though the said documents were given exhibit numbers, while deciding the appeal, the learned appellate Court has not dealt with and/or considered the same at all and, therefore, it is requested to allow the present Second Appeal and remand the matter to the learned appellate Court to decide and dispose of the appeal in accordance with law after considering the documents, which were produced alongwith the list at Exh. 35, which were permitted to be produced by the appellant-original plaintiff by way of additional evidence.
5. Shri R.C. Jani, learned advocate appearing on behalf of respondent no. 1 has submitted that as such on merits the learned appellate Court has not committed any error and/or illegality in dismissing the appeal confirming the judgment and decree passed by the learned trial Court. It is submitted that as rightly observed by both the Courts below the appellant- original plaintiff had no right to hold the post in question and even claim permanency as his appointment was absolutely temporary/ad hoc and till the regularly selected candidate is available. However, he is not in a position to dispute that the learned appellate Court has not considered the documents/additional evidence, which were permitted to be produced under Order 41 Rule 27 of the Code of Civil Procedure vide Exh. 35.
6. Heard the learned advocates appearing on behalf of the respective parties at length. It is required to be noted that in the appeal the appellant-original plaintiff submitted the application, Exh. 35 requesting to permit him to produce the additional evidence/documents, which were produced at Mark 35/1 to 35/13. The learned advocate appearing on behalf of respondent no. 1 did not the object the said application and on the contrary made the endorsement that he has no objection if the additional evidence/documents produced at Mark 35/1 to 35/13 be given the exhibit numbers and considered as evidence. Thereafter, the learned appellate Court allowed the said application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure and permitted the appellant- original plaintiff to produce additional evidence, which was produced at Mark 35/1 to 35/13 and it appears that the same were also given exhibit numbers. However, while finally deciding and disposing of the appeal, the appellate Court has not considered and/or dealt with the said additional documents/evidence at all and has dismissed the said appeal. Once, the learned appellate Court has permitted the party to produce additional evidence, more particularly, under Order 41 Rule 27 of the Code of Civil Procedure, in that case, while deciding the appeal the learned appellate Court was required to atleast deal with the same and consider the same otherwise the purpose to produce the additional evidence would be frustrated. It is to be noted that once the application by the parties for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure is allowed by the learned trial Court it is to be presumed, more particularly, considering Clause 3 that the learned trial Court has thought it fit to permit the additional evidence for considering the case and/or for just decision. Under the circumstances, as such the learned appellate Court was required to consider and deal with the documents, which were produced alongwith additional evidence. By not considering the same, the learned appellate Court has committed a grave error and, therefore, the impugned judgment and order passed by the learned appellate Court to dismiss the appeal without considering the additional evidence cannot be sustained and the same deserves to be quashed and set aside and the matter is to be remanded to the learned appellate Court to decide the appeal afresh in accordance with law and on its own merits after considering the additional evidence, which the appellant was permitted to produce while submitting the application, Exh. 35 i.e. the documents, which were produced at Mark 35/1 to 35/13, which were given subsequent exhibit numbers.
7. In view of the above and for the reasons stated hereinabove solely on the aforesaid ground and without further expressing anything on merits in favour of either parties and keeping the contention on behalf of the respondent open that the appellant-original plaintiff has no right on the post in question and his appointment was ad hoc and as a stop gap till the regularly selected candidate is available and all the other defenses are kept open and it is observed that this Court has not expressed anything on merits in favour of either parties, inclusive of the appellant and the impugned judgment and order passed by the learned appellate Court is set aside solely on the aforesaid ground that there is non-consideration of the additional evidence, which were permitted to be produced by the appellant.
8. In view of the above and for the reasons stated hereinabove and with the above observation, the present Second Appeal is allowed and the impugned order passed by the learned Presiding Officer, 7th Fast Track Court, Junagadh dated 31/03/2008 in Regular Civil Appeal No. 10/1997 Court is hereby quashed and set aside and the matter is remanded to the learned appellate Court for deciding the said appeal afresh in accordance with law and on its own merits and after considering the additional evidence produced at Exh. 35 i.e. the documents produced at exhibit Mark 35/1 to 35/13 which were subsequently given exhibit numbers. The aforesaid exercise shall be completed within a period of six months from the date of receipt of the present order. The present Second Appeal is allowed to the aforesaid extent only. No order as to costs.
9. Registry is directed to return the Record and Proceedings to the learned appellate Court immediately.
(M.R. SHAH, J.) siji