ORDER V.K. Agrawal, J.—This Misc. Appeal is directed against the judgment dated 7-7-2000, in Civil Appeal No. 49-A/99, by Fourth Additional District Judge, Rewa, setting aside the judgment and decree dated 25-1-1996, in Civil Suit No. 105-A/1994 and remanding the case for retrial. 2. The original Plaintiff Hirdaylal filed a suit for declaration of his share in the suit property, and for partition and possession thereof. Since Hirdaylal died during the pendency of the suit, Appellants were substituted in his place, as his legal representatives. The case of the Plaintiff was that the suit property was joint Hindu Family Property. Since differences arose between original Plaintiff Hirdaylal and Defendants No. 1 and 2, the Plaintiff requested for partition. However, Defendants No. 1 and 2 did not partition the suit property. Hence, suit for partition and possession was Filed. The suit was resisted only by Defendants/respondents 1 and 2. Remaining Defendants/respondents remained absent and therefore, were proceeded against ex-parte by the trial Court. 3. The learned trial Court decreed the suit and declared that the Plaintiffs had one third share in the suit property and that the Defendants No. 1 and 2 had also one third share each. The Defendants/respondents No. 1 and 2 preferred an appeal before the lower Appellate Court against the said judgment and decree of the trial Court. The Defendants No. 1 and 2 Appellants in the lower Appellate Court, filed an application marked by the lower Appellate Court as I.A. No. 2, under Order 6, Rule 17 read with Section 151, Code of Civil Procedure, for amendment in the written statement. They filed another application marked by the lower Appellate Court, as I.A. No. 3 under Order 41, Rule 27 of Code of Civil Procedure, for production of additional evidence and also an application marked as I.A. No. 4 u/s 35 of the Stamp Act praying that stamp duty and penalty be permitted to be paid on the agreement dated 22-1-66. 4. The learned lower Appellate Court by the impugned judgment allowed the said applications and remanded the case for retrial to the trial Court. 5. Learned Counsel for Plaintiffs/appellants submitted that the learned lower Appellate Court has proceeded to decide the appeal in a casual manner without considering its merit and without adhering to the settled principles of law. 4. The learned lower Appellate Court by the impugned judgment allowed the said applications and remanded the case for retrial to the trial Court. 5. Learned Counsel for Plaintiffs/appellants submitted that the learned lower Appellate Court has proceeded to decide the appeal in a casual manner without considering its merit and without adhering to the settled principles of law. It has been submitted that the lower Appellate Court considered and allowed application under Order 41, Rule 27 of Code of Civil Procedure, as well as applications under Order 6, Rule 17, CPC and Section 35 of the Stamp Act, without considering the same in proper perspective and without considering the case on merits. It was therefore urged that the impugned judgment remanding the suit for retrial is not proper and cannot be sustained. 6. It is noticed that the learned lower Appellate Court in para 11 of the impugned judgment framed four questions for consideration in the appeal, which are as below: (i) Whether the Appellant's application (I.A. No. 2) for amendment is liable to be allowed? (ii) Whether the Appellant's application (I.A. No. 3) for production of documents as additional evidence is liable to be allowed? (iii) Whether the Appellant's application (I.A. No. 4) for permission to pay stamp duty and penalty is liable to be allowed? and (iv) Whether the trial Court's judgment and decree is against the law and procedure, and therefore liable to be set-aside? 7. The learned lower Appellate Court in para 12 of the impugned judgment observed that application (I.A. No. 2) for amendment deserves to be allowed. Similarly in para 13 of the impugned judgment, the lower Appellate Court observed that the application (I.A. No. 3) for production of documents as additional evidence was liable to be allowed, as the said documents do not appear to be forged one and as they are necessary for the final decision of the case. It is noticed that the lower Appellate Court did not assign specific reasons as to why the said documents were necessary for the decision of the case. The learned lower Appellate Court has also not considered as to whether there was any justification for their late production. Application (I.A. No. 4) for permission to pay stamp duty and penalty was also allowed. The learned lower Appellate Court has also not considered as to whether there was any justification for their late production. Application (I.A. No. 4) for permission to pay stamp duty and penalty was also allowed. Further in para 15 of the impugned judgment it was observed that as the applications as above, have been allowed, there is no need to consider the questions involved in appeal on merits. The learned lower Appellate Court therefore remanded the case for decision afresh to the trial Court. It is therefore clear that the learned lower Appellate Court did not consider the controversy involved in the suit and the judgment of the trial Court on merit. 8. It may be noticed that the application (I.A. No. 2) under Order 6, Rule 17 of Code of Civil Procedure, was regarding amendment in the plaint. By the proposed amendment, it was sought to be pleaded that there was already a partition between the Appellants/defendants No. 1 and 2 and their elder brother deceased Hirdaylal (the original Plaintiff) in the year 1972, and that subsequently some dispute arose which was decided by the Panchas on 22-7-1973. The plea of mutual partition in the year 1972 sought to be raised by way of amendment, would involve question of fact. It was being raised after the judgment of the trial Court and after the appeal remained pending before the lower Appellate Court for a long time. No reason or explanation has been given in the said application for amendment as to why the pleas as above were not raised earlier though the suit was filed long back in the year 1987. Still the lower Appellate Court virtually mechanically allowed the said application without assigning reasons for doing so. The application for amendment filed after 12 years after the institution of the suit should not have been allowed in such a casual manner, without considering the merits of the case. 9. It may also be noticed that in application (I.A. No. 3) under Order 41, Rule 27 of Code of Civil Procedure, it has been rather cryptically stated that the belated production of document was because of the wrong advise of the counsel in the trial Court of Defendants No. 1 and 2. 9. It may also be noticed that in application (I.A. No. 3) under Order 41, Rule 27 of Code of Civil Procedure, it has been rather cryptically stated that the belated production of document was because of the wrong advise of the counsel in the trial Court of Defendants No. 1 and 2. The vague and general statement as above for belated production of documents totally lacked particulars as to who was the counsel and in what context did he advise the Defendants Nos. 1 and 2 not to obtain the documents in the trial Court. The said application was not even supported by affidavit. 10. It would be useful to advert to the provision of Order 41, Rule 27, Code of Civil Procedure, for production of additional evidence in Appellate Court. The said provision is as below: 27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) 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 cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 11. In the instant case, it was not the case of the Defendants No. 1 and 2/appellants before the lower Appellate Court that the trial Court had refused to admit documents in evidence. Therefore, the said application obviously was not preferred u/s 27(1)(a) of Code of Civil Procedure. 12. It may further be noticed that additional evidence could be permitted under Order 47, Rule 27(l)(b) either 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 cause. 12. It may further be noticed that additional evidence could be permitted under Order 47, Rule 27(l)(b) either 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 cause. It is not reflected from the impugned judgment that any of the grounds as above existed. Even if the application was under the aforesaid provision, the proper course for the trial Court would have been to consider the controversy between the parties on merit and then to have found out as to whether the documents sought to be produced by the Defendants, were necessary to enable it to pronounce judgment or deserves to be accepted for any other substantial cause. 13. It appears that the application (I.A. No. 3) was filed seeking recourse to Order 41, Rule 27(l)(aa) of the Code of Civil Procedure. However, under the said provision the party seeking to produce additional evidence, has to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or that he could not, after, the exercise of due diligence, produce it at the time when the decree appealed against him was passed. 14. As noted earlier, the reasons assigned in the application for production of documents lacked in essential particulars and were rather vague. Moreover, the learned lower Appellate Court does not appear to have considered the application (I.A. No. 3) in the light of the provisions under Order 41, Rule 27(T)(aa) of Code of Civil Procedure. It has not recorded a finding and its satisfaction that the Appellants/defendants No. 1 and 2 after the exercise of due diligence, could not produce the documents in the trial Court. As noticed earlier, in para 13 of the impugned judgment, the lower Appellate Court has only stated that since the documents cannot be termed as forged or fabricated and that they are necessary for final decision of the case, and that in view of the controversy between the parties, they are permitted to be produced as additional evidence. It may further be noticed in the above context that the learned lower Appellate Court in para 15 observed that there is no need to go into the merits of the case. It may further be noticed in the above context that the learned lower Appellate Court in para 15 observed that there is no need to go into the merits of the case. It is rather surprising that without considering the merit of the case, the trial Court could express its opinion and arrived at the conclusion that the documents are necessary and important for final decision of the suit; as has been observed by it in para 13 of the impugned judgment. 15. It has been observed by the Privy Council in AIR 1931 143 (Privy Council) that: The provisions of Section 107, Code of Civil Procedure, as elucidated by Order 41, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal. Turning to the provisions of Rule 27, CI. (l)(a) has no application in the present case. Under CI. (l)(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. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever 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. G.I.P. Ry. (1) (at p. 122 of 34 I.A.). He was dealing with the words of Section 568 of the Code of 1882, but they are substantially the same as those of Order 41, Rule 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 appreciation of the evidence as it stands. 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 appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that so far as the record discloses, none of these conditions was complied with in the present case. 16. In Arjun Singh alias Puran Vs. Kartar Singh and others, while dealing with the question as to how additional evidence should be permitted, it was observed by the Supreme Court that the discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41, Rule 27, Code of Civil Procedure. It is, therefore, clear that the discretion under Order 41, Rule 27, CPC should be exercised judiciously, and that it should be exercised within the limitations prescribed in that provision. This possibly can only be done when the appeal is heard and considered on merit. 17. In the above context in Khemchand Mulchand v. Government of Madhya Pradesh. Bhopal, 1972 MPLJ 524 , it was observed: Even though the position that an Appellate Court is not in a position to decide whether additional evidence should be allowed in the appeal unless it is first heard, on merits is clear enough on the wording of Order 41, Rule 27(1) itself, the practice has grown up in the lower Appellate Courts of deciding an application under Order 41, Rule 27(1) immediately after it is moved and even before hearing the appeal on merits. It is beyond comprehension how the Appellate Courts are able to decide such applications when they have no idea whatsoever of the merits of the appeal. This practice must stop forthwith and no lower Appellate Court should yield to the request of any party to consider its application under Order 41, Rule 27(1) before the hearing of the appeal itself. It is beyond comprehension how the Appellate Courts are able to decide such applications when they have no idea whatsoever of the merits of the appeal. This practice must stop forthwith and no lower Appellate Court should yield to the request of any party to consider its application under Order 41, Rule 27(1) before the hearing of the appeal itself. The appeal must first be heard on the merits and then the lower Appellate Court should decide whether the application for production of additional evidence should or should not be allowed. If the application is allowed, then, no doubt, the appeal has to be heard again on merits after the reception of additional evidence for final disposal. 18. It was further observed in the said case that what has been said in relation to application (I.A. No. 3) under Order 41, Rule 27(1), Code of Civil Procedure, also applies to the disposal of an application for amendment of pleadings made at the appellate stage and that the question whether a party should or should not be allowed to amend its pleading at the appellate stage cannot in its very nature be decided, unless the appeal is first heard on merit. 19. In the instant case, as noticed earlier, the lower Appellate Court without considering the appeal on merit, proceeded to decide the application (I.A. No. 3) under Order 41, Rule 27 of CPC and application (I.A. No. 2) for amendment under Order 6, Rule 17, Code of Civil Procedure. 20. It also appears that an application marked as I.A. No. 4 u/s 35 of the Stamp Act was filed in the lower Appellate Court by the Defendants. It was stated therein that though by order dated 3-2-1995, the trial Court directed payment ' by the Defendants of stamp duty and penalty on agreement dated 22-1-1966 but the trial Court did not indicate as to what is the stamp duty and penalty payable. Therefore, it was prayed that the stamp duty and penalty payable may be specified and the Defendants/appellants in the lower Appellate Court (respondents herein) may be permitted to pay the same. The learned lower Appellate Court in para 14 of the impugned judgment observed that the trial Court should have impounded the documents-agreement dated 22-1-1966 and Panch Faisla dated 22-7-1973 by directing payment of stamp duty and penalty thereon. It was further observed that since applications. The learned lower Appellate Court in para 14 of the impugned judgment observed that the trial Court should have impounded the documents-agreement dated 22-1-1966 and Panch Faisla dated 22-7-1973 by directing payment of stamp duty and penalty thereon. It was further observed that since applications. I.A. No. 2 and I.A. No. 3 have been allowed, the said application I.A. No. 4 u/s 35 of the Stamp Act also deserves to be allowed. 21. It may be noticed that by order dated 3-2-1995 admissibility in evidence and payment of stamp duty and penalty on two different documents-agreement dated 22-1-1966 and Panch Faisla dated 22-7-1973 was considered by the trial Court. It was observed by the trial Court in its order dated 3-2-1995 that the said documents do not bear proper stamp duty and were not registered and therefore could not be admitted in evidence. However, it was further observed that in view of proviso to Section 35 of the Indian Stamp Act, 1899, if duty and penalty is paid on the said documents, they would be admitted in evidence for collateral purpose. It may be noticed that in I.A. No. 4, filed before the lower Appellate Court, the Defendants did not make any prayer regarding the Panch, Faisla dated 22-7-1973. The prayer was only regarding agreement dated 22-1-1966. By the said application (I.A. No. 4), the Defendants prayed that the stamp duty, and penalty on the said agreement dated 22-1-1966 may be specified and they may be permitted to pay the same. 22. However, as noticed above, the learned lower Appellate Court in the impugned judgment directed that both the documents i.e. agreement dated 22-1-1966 as well as Panch Faisla dated 22-1-1973 should have been impounded by the trial Court after directing the Defendants to pay necessary stamp duty and penalty thereon. It was further observed by the learned lower Appellate Court that since I.A. No. 2 under Order 6, Rule 17 and I.A. No. 3 under Order 41, Rule 27 of CPC are being allowed, I.A. No. 4 u/s 35 of the Indian Stamp Act is also allowed. It was further observed by the learned lower Appellate Court that since I.A. No. 2 under Order 6, Rule 17 and I.A. No. 3 under Order 41, Rule 27 of CPC are being allowed, I.A. No. 4 u/s 35 of the Indian Stamp Act is also allowed. Obviously the learned lower Appellate Court without due application of mind and without even considering the prayer in I.A. No. 4, which was limited to the document-agreement dated 22-1-1966, allowed the said application for both the documents with the further direction to the trial Court to afford an opportunity of hearing to the parties regarding the evaluation of the said documents and to pass orders directing the Defendants to pay duty and penalty thereon. 23. It is obvious that the trial Court by order dated 3-2-1995 directed that stamp duty and penalty be paid on the said documents. If the Defendants wished to have some clarification regarding the duty and penalty liable to be paid on the said documents, they should have made a prayer in that regard to the trial Court. They did not appear to have done so. Therefore, the application I.A. No. 4 filed by the Defendants before the lower Appellate Court was not justified. Moreover, as pointed out above, the lower Appellate Court without considering the said application in proper perspective allowed the same mainly because it had allowed other applications I.A. No. 2 and I.A. No. 3. The approach as above of the learned lower Appellate Court is not justified. 24. The impugned judgment of the lower Appellate Court remanding the case to the trial Court after allowing the applications I.A. No. 2, I.A. No. 3 and I.A. No. 4 as noticed above, without considering the merit of the case appears to be wholly unjustified. The impugned judgment therefore deserves to be set-aside. 25. Accordingly, the appeal is allowed. The impugned judgment of the lower Appellate Court remanding the case to the trial Court is set-aside. It is directed that the lower Appellate Court shall now consider and decide the appeal in the light of observations as above. The applications filed before it shall also be considered and decided in accordance with law, keeping in view the observations as above. Final Result : Allowed