JUDGMENT - R.K. BATTA, J.:---This is an application filed on behalf of the applicant for taking certified copy of order dated 15-4-1968 which was passed in Tenancy Proceedings No. 97/59(13)/63-64 and also for production of these proceedings. According to the learned Advocate for the applicant, by order dated 15-4-1968 it was held that the mother of the respondent No. 1 was not tenant of the property in respect of which the respondent No. 1 was tried for theft under sections 379 and 427 of I.P.C. In the said criminal case, he was convicted by the trial Court but was acquitted by the Appellate Court and against the said acquittal, revision has been admitted by this Court. He, therefore, contends that the order dated 15-4-1968 as also the Tenancy Proceedings be allowed to be produced under section 391 read with section 482 Cri.P.C. Learned Advocate for the applicant has stated that no appeal was filed against the order dated 15-4-1968. In support of his contention he relies upon the judgment of the Apex Court in (Rajeswar Prasad Misra v. The State of West Bengal and another)1, reported in A.I.R. 1965 S.C. 1887. 2. This application is strongly opposed by the learned Advocate for the respondent No. 1 on the ground that the said evidence was available, the prosecution had opportunity to produce the same, but since it was not produced, the same should not be allowed to be produced on account of delay and laches in production of the same. In support of his submission, he relies upon the judgment of the Apex Court in (Rambhau and another v. State of Maharashtra)2, reported in 2001(3) Bom.C.R. (S.C.)638. Learned Advocate for the respondent No. 1 also sought permission to file certified copy of order dated 4th March, 2001 by which the grand-father of respondent No. 1 has been held to be tenant of the suit property in respect of which the offence under sections 379 and 427 of I.P.C. is alleged to have been committed. 3. The whole controversy in this appeal as also the Criminal Revision Application No. 31 of 2000 filed by the present applicant challenging the order of acquittal of respondent No. 1 is as to in whose possession was the suit property when the offence is alleged to have been committed and whether the grand-father of the respondent No. 1 is a tenant of the said property. The Apex Court in Rajeswar Prasad Misra v. The State of West Bengal and another (cited supra) has laid down :- "Similarly, the Code gives power to the Appellate Court to take additional evidence, which, for reasons to be recorded, it considers necessary. Thus the Code gives power to the Appellate Court to order one or the other, as the circumstances may require, leaving a wide discretion to it to deal appropriately with different cases. Additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power has to be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must not, however, be received in such a way as to cause prejudice to the accused, as for example, it would not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise." 4. The Apex Court in Rambhau and another v. State of Maharashtra (cited supra) has reiterated the position of law laid down by the Apex Court in Rajeswar Prasad Misra v. The State of West Bengal and another (cited supra). In this respect, it has been observed by the Apex Court in Rambhau and another v. State of Maharashtra (cited supra), as under :- "Incidentally, section 391 forms an exception to the general rule that an appeal must be decided on the evidence which was before the trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." 5. It is not to fill up the lacuna but to sub-serve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." 5. One of the considerations for permitting the additional evidence under section 391 is that the additional evidence may be permitted to be produced if otherwise there is failure of justice without it. I have already pointed out that the crucial question which is involved in this appeal as well as in Criminal Revision Application No. 31 of 2000 is as to who was in possession of the suit property on the date of the commission of the crime and whether the grand-father of the respondent No. 1 was or is a tenant of the said suit property. The documents which are sought to be produced by the learned Advocate for the applicant have decided the issue of tenancy against which it is urged that there was no appeal. Learned Advocate for the respondent No. 1 has also sought permission to produce certified copies of order dated 4th March, 2001 where according to him the grand-father of respondent No. 1 has been declared to be tenant. 6. In view of the above, the application is allowed and the applicant is allowed to produce the order dated 15-4-1968 along with the proceedings of Tenancy Case No. 97/59(13)/63-64. Likewise order dated 4th March, 2001 sought to be produced by respondent No. 1 is also allowed to be produced. The application stands disposed of accordingly. 7. Appeal admitted. Application allowed. -----