B. J. DIVAN, J. ( 1 ) THIS Civil Revision Application arises under the following circumstances:- ( 2 ) A suit was filed in the Court of the Civil Judge Jr. Dn. Rajkot in connection with certain property. The parties at the trial of that suit rested content with leading oral evidence only and no documentary evi- dence was led. The defendants pleaded that on an exchange of lands which had come about through certain official proceedings of the then Gondal State the property in question had come to the ancestors of the defendants. No attempt appears to have been made by the parties to lead any evidence regarding the records of Gondal State before the learned trial Judge. The learned trial Judge decreed the plaintiffs suit purely on appreciation of the oral evidence that had been led before him. Against this decision the defendants went in appeal and two applications were presented by different defendants one being Ex. 11 before the appellate Court and the other being Ex. 14 before the appellate Court asking the appellate Court to take on record documentary evidence in the shape of certified copies of the records of the previous Gondal State and of the Political Agency in connection with the alleged exchange of lands and exchange of properties. These two applications were heard by the learned Assistant Judge Rajkot District Gondal camping at Rajkot and by his judgment and order dated February 12 1964 the learned Assistant Judge allowed the applications and the plaintiff was directed to file his objec- tions on February 17 1964 and the documents were directed to be exhi- bited after the objections were received and heard. The present Civil Revision Application has been filed by the heirs of the original Plaintiff against this judgment and order of the learned Assistant Judge. ( 3 ) IT must be made clear at the outset that the hearing of the appeal had not at all commenced before the learned Assistant Judge and the Learned Assistant Judge had taken up first the question whether the addi- tional evidence should be admitted or not. ( 3 ) IT must be made clear at the outset that the hearing of the appeal had not at all commenced before the learned Assistant Judge and the Learned Assistant Judge had taken up first the question whether the addi- tional evidence should be admitted or not. In the course of his judgment the learned Assistant Judge has observed as follows:- the decision given by the learned Judge has been solely based on the oral evidence of the parties and which evidence to my mind could not be construed as sufficient and cogent one to give final decision on the pleas raised by the parties. This record sought to be produced in my candid opinion will determine the rights of the parties and the final decision of the appeal could not effectively be given without the aid of the official record which shows that the exchange of lands between two `patis and how the exchange of the land in question had taken place. With respect to the learned Judge he was putting the cart before the horse and without appreciating the entire material on record while dispos- ing of the application to lead additional evidence he has already expressed an opinion that the rights of the parties would be governed by what is shown in the official record without appreciating the entire evidence oral evidence led before the trial Court and the documentary evidence which he was admitting before the appellate Court into account. ( 4 ) IT is clear that on the facts of this particular case the learned Assistant Judge could only exercise his powers under Order 41 Rule 27 sub-rule (1) (b) of the Civil Procedure Code. That provision is as follows:-THE parties to an appeal shall not be entitled to produce additional evidence. whether oral or documentary in the Appellate Court. Bat if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial causethe question that I have to consider in this Civil Revision Application is at what stage should the Appellate Court decide whether additional evidence should be permitted to be led or not. ( 5 ) IN the well-known case of Kessowji Issur v. Great Indian Peninsula Railway Company I. L R. 31 Bom. 381 the Privy Council construed the provisions of sec. ( 5 ) IN the well-known case of Kessowji Issur v. Great Indian Peninsula Railway Company I. L R. 31 Bom. 381 the Privy Council construed the provisions of sec. 560 of the Code of Civil Procedure 1882 The language of that section was the same as the language of 0. 47 r. 1 (b) except that instead of the words: for any other substantial cause which occur in 0. 47 r. 1 (b) the words: for any other substantial reason were used. Otherwise the Language of the two provisions is the same. Dealing with this provision Their Lordships of the Privy Council observed at page 390 of the report as follows: -. . . . IT appears to their Lordships that the Appellate Court hid no jurisdiction to admit this evidence that it was wrongly admitted and does not form part of the evidence in this appeal. It must therefore be disregarded. It has further been observed that the legitimate occasion for sec. 568 C. P. C. is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent and not where a discovery is made outside the Court of fresh evidence and the application is made to import it that is the subject of the separate enactment in sec. 623. It is there- fore clear that according to the Privy Council if the Appellate Court chooses to exercise its discretion to admit additional evidence on record. on examining the evidence as it stands it cannot do so unless it finds that some inherent lacuna or defect has become apparent and if this is not done it has no jurisdiction to admit additional evidence and if any such additional evidence is admitted it must be disregarded in deciding the matter. ( 6 ) IN a subsequent decision of the Privy Council in Parsotim v. Lal Mohar 58 Indian Appeals 254 the provisions of 0. 41 r. 27 (1) (b) C. P. C. were examined and it has been observed at page 257 of the report as follows:- under r. 27 (1) (b) it is only where the appellate Court requires it (i e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause but in either case it must be the Court that requires it. It may be required to enable the Court to pronounce judgment or for any other substantial cause but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not when- ever before the appeal is heard a party applies to adduce fresh evidence. but when on examining the evidence as it stands some inherent lacuna or defect becomes apparent. This is laid down in the most positive terms by lord Robertson in Kessowji Issur v. Great Indian Peninsula Rly. Co. (34 I. A. 115) He was dealing with the words of sec. 568 of the Code of 1882. Bat they are substantially the same as those of Order XLI r. 27 of the present Code. It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect but the requirement must be the requirement of the Court upon its apprecia- tion of the evidence as it stands. Wherever the Courts adopts this procedure it is bound by r. 27 (2) to record its reasons for so doing and under r. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. ( 7 ) IN Arjan Singh v. Kartar Singh A. I. R. 1951 S. C. 193 the Supreme Court considered the decisions of the Privy Council in I. L. R. 31 Bom. 381 and 58 Indian Appeals 254 and has observed as follows: the discretion given to the appellate Court by O. 41 R 27 to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence it will be a case of improper exercise of discretion. and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non- existent. and the additional evidence so brought on the record will have to be ignored and the case decided as if it is non- existent. The legitimate occasion for the application of O. 41 R 27 is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent not where a discovery is made outside the Court of fresh evidence and the application is made to import it. The true test therefore is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consi- deration the additional evidence sought to be adduced. ( 8 ) THE same view was again taken by the Supreme Court in The Municipal Corporation of Greater Bombay v. Pancham A. I. R. 1965 S. C. 1008 The judgment of the Supreme Court was delivered by Mudholkar and in para 9 at page 1011 of the report Mudholkar J. has held as follows: under 0. 41 Rule 27 the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way In other words it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. In view of these pronouncements of the Privy Council and the Supreme Court it is obvious that the learned Assistant Judge was in error when without entering into the evidence without appreciating the evidence as it stood and without coming to the conclusion that there was some lacuna on the evidence as it stood he decided merely on the applications Exs. 11 and 14 to allow additional evidence to be led. ( 9 ) THE question then arises whether under sec. 115 C. P. C the High Court can exercise its powers. Under 0. 11 and 14 to allow additional evidence to be led. ( 9 ) THE question then arises whether under sec. 115 C. P. C the High Court can exercise its powers. Under 0. 41 r. 27 (1) (b) C. P. C. the stage of allowing additional evidence arises only when the evidence on record has already been examined and some lacuna or defect in the evidence as it stands on the record has been found by the appellate Court. The stage of examining the record was not reached in the instant case when the learned Assistant Judge ordered that additional evidence should be taken on record. In the exercise of the discretion which was undoubtedly vested in him the learned appellate Judge has acted with material irregu- larity; and if this irregularity were to be permitted to continue the result would be that at all subsequent stages the additional evidence which has been permitted would have to be disregarded. In order to see that neither party suffers because of this irregularity I set aside the order passed ny the learned Assistant Judge under sec. 115 (c) C. P. C. and direct that the applications Exs. 11 and 14 in the lower appellate Court should be heard along with the appeal and in the light of the observations that I have made in this judgment if it is thought proper and necessary to admitdditional evidence the lower appellate Court may still do so that stage ( 10 ) IN the result this Civil Revision Application is allowed. The order passed by the learned Assistant Judge is set aside. The rule is made absolute. The costs of this Civil Revision Application to be the costs in the appeal before the learned Assistant Judge. Application allowed .