JUDGMENT Hon’ble S. N. Srivastava, J.—Subject matter of impugnment in the instant petition is the order dated 26th Feb, 2004 passed by Lower Appellate Court whereby application for filing additional evidence in Civil Appeal No. 82 of 1999, Smt. Motha v. Harpal Singh and others, was rejected premised on the ground that mere default on the part of the lawyer cannot be treated as sufficient cause. 2. A brief resume of necessary facts is that plaintiff Smt. Motha happens to be widow of deceased Leela who in turn was full blooded brother of Govind Singh alias Ghosi. In the aftermath of death of Leela, plaintiff became co-bhumidar to the extent of one-half share in Gata No. 48 admeasuring 14 Bigha, 15 Biswa and 5 Biswansi situated in village Utwara Pargana Tappal Tahsil Kher District Aligarh and Gata No. 51 admeasuring 5.68 acre situated in village Khajpur Tahsil Maant District Mathura. Out of the said property the remainder half share belonged to the father of the defendants. The plaintiff instituted suit for cancellation of sale deed dated 14.10.1987 purported to have been executed by the plaintiff in favour of defendants 1 to 5 registered in the office of Sub Registrar Kher Aligarh on the ground that she never executed any sale deed in favour of defendants; that she is a co-tenure holder and in actual possession and she still enjoys the same; that she came to know on 16.11.1987 that any sale deed has been executed purported to have been executed by the plaintiff on 12.10.1987; that she is an illiterate and unsophisticated village lady and she never executed any sale deed; that initially she filed a criminal complaint which culminated in being dismissed by Judicial Magistrate on the ground that the matter has the complexion of being of civil nature and that in mutation also she contested the case; that on the advice of the Counsel, thereafter, the plaintiff filed a suit that fraud was committed inasmuch as the defendants set up someone to impersonate her at the time of execution of sale deed; that though she is illiterate lady she never puts her thumb impression; that the land in dispute is the only source of livelihood for her and for her family and she has no other source to fall back upon; that she was not paid either Rs. 40,000/- or Rs. 40,000/- or Rs. 60,000/- as alleged; that there was no independent witness and further that the scribe and witnesses testifying to sale deed are the own men of defendant No. 1; that in mutation proceeding it was established that sale deed did not bear any thumb impression and mutation of defendants was rejected and thereafter the defendants filed an appeal in superior Revenue Courts. 3. From a perusal of record, it would transpire that during pendency of the suit, the plaintiff filed certified copy of expert evidence filed in the mutation proceeding and also made an application to produce fresh expert report in the trial Court. Initially, the trial Court granted time to the plaintiff to file the expert a evidence but during appeal she came to know that the same was not brought on record within the time allowed and ultimately, the suit was dismissed. In appeal, an application was filed by the plaintiff to adduce expert evidence on the ground that she was an illiterate and unsophisticated village lady and that she was not aware that expert evidence was not filed by Counsel in suit; though the expert report was received by her Counsel on 27.9.1991 itself as she was unaware that it was not brought on record by the Counsel. The appeal came to be dismissed on 17.1.2002 for default of the Counsel. Thereafter, the petitioner discharged the Counsel from brief and engaged another Counsel namely Ram Raksha Pal for seeking restoration. In course of time, the appeal was restored to its-original number. Thereafter, the petitioner was informed by the subsequent Counsel namely Ram Raksha Pal Singh that Expert report was on the file of the Counsel and was advised to bring the same on record and consequently, an application was filed alongwith an application attended with an affidavit before the lower appellate Court under Order 41 Rule 27, C.P.C. but the same also culminated in being rejected by means of the impugned order. 4. I have heard learned Counsel for the parties and also have been taken through the materials on record. 5. 4. I have heard learned Counsel for the parties and also have been taken through the materials on record. 5. The learned Counsel for the petitioner canvassed that the grounds set out in the application filed with accompanying affidavit constitutes a ground under Order 41 Rule 27 of the C.P.C. and this evidence was apt to be admitted on record particular regard being had to the fact that the lady was an illiterate and unsophisticated village lady who had no knowledge or clue about legal technicalities and was fully dependent upon her lawyer that she had already made an application to bring on record the hand-writing Expert report in trial Court but the same was not filed though received by Counsel and by this reckoning, she was a victim of fraud committed on her by her Counsel. Per contra, Sri M. K. Gupta, learned Counsel for the Opposite parties contended that ground urged is no ground for admitting expert evidence as additional evidence on record under Order 41, Rule 27, C. P.C. inasmuch as the fault if any on the part of the Counsel does not fall within the parameters of grounds contemplated under Order 41 Rule 27, C.P.C. He further contended that the Counsel engaged by the petitioner at the trial Court was a lawyer of considerable renown and the allegations made against the said lawyer are not substantiated from the record. The learned Counsel placed reliance on Mahavir and others v. Naresh Chandra and Anr, 2001 (1) ARC 154 and Gurdev Singh and others v. Mehnga Ram and another, 1997 SC & (FB) Rent Cases 370, to reinforce his contentions aforesaid. In rejoinder, learned Counsel for the petitioner again canvassed that the case laws cited by learned Counsel for the Opp. parties have 110 application to the facts of the present case further urging that this is a clear case where fraud has been committed on illiterate and rustic village lady. He also canvassed that the affidavit filed by her in support of the application remained uncontroverted and only objection was filed and allegations have not been denied except raising technical objection to the extent that in case any fraud was committed by the Counsel she was required to prove before the Court as to what steps she has taken against the Counsel and secondly that the application was designed to remove lacunae in the case. However, the fact remains that factual aspects have not been specifically denied. 6. Before dwelling upon the merits, it would be useful to grasp the significance of the provisions contained in Order 41 Rule 27 of the C.PC. vis-a-vis the controversy involved in this Petition. Order 41 Rule 27 of the C.PC. being germane is quoted below: "Rule 27. Production of additional evidence in appellate Court.—(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) Where additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.” 7. The question that crystallizes for determination in the present case is whether fraud allegedly committed by the Counsel or for matter of that, fault of the Counsel in not producing evidence, which was already on record, could constitute a ground for admitting additional evidence on record. In the facts and circumstances and upon regard being had to materials on record, it brooks no dispute that the petitioner is an unlettered rustic lady oblivious of intricacies of law who only knows to affix her thumb impression. It is borne out from the record that appropriate application was made on behalf of the plaintiff and consequently, the trial Court ordered to produce expert evidence accordingly. It would thus transpire that all requisite steps were taken on behalf of the plaintiff to have expert opinion. The said report was received by the Counsel for the petitioner, which he did not file in the trial Court and it was subsequently found from the file of the Counsel for the petitioner. It would thus transpire that all requisite steps were taken on behalf of the plaintiff to have expert opinion. The said report was received by the Counsel for the petitioner, which he did not file in the trial Court and it was subsequently found from the file of the Counsel for the petitioner. In the meantime, the trial Court dismissed the suit. The only question now remains whether plaintiff by seeking to produce additional evidence has made out a ground under Order 41 Rule 27 of the C.PC. that she could not have knowledge even after exercising due diligence whether expert evidence which was received by the Counsel was produced by the Counsel in the course of trial before the trial Court or not. In this connection, it is worthy of notice that the fact has not been denied that the petitioner is an illiterate village lady and she is unlettered village lady except that she knows only to affix her thumb impression. An illiterate rustic lady cannot be expected to have a clue about intricacies and niceties of law. There is nothing on record to indicate that there was any fault on the part of the petitioner in not bringing the report on record. It is also borne out from the record that the report received by the erstwhile Counsel for the petitioner was discovered from the file of the earlier Counsel by the newly engaged Counsel that she came to know of this fact and in the circumstances, it cannot be gainsaid that fault lay on the part of the erstwhile Counsel for the petitioner who failed to bring on record the expert report already existing. The averments made in the affidavit filed by the petitioner in support of her application that she had no knowledge that the expert report had not been brought on record by her erstwhile Counsel is said to have not been controverted and what has been demurred to by the learned Counsel for the Opposite party is that the lapse of the Counsel on his part was not sufficient ground for admitting additional evidence on record. In the circumstances, it cannot be ruled out that the petitioner was unaware that her Counsel had not brought on record the expert report and in this view of the matter, this Court is of the opinion that this could furnish a good ground for admitting additional evidence on record. In this connection, case of Rafiq and another v. Munshi Lal and another, AIR 1981 SC 1400 . In this case, the Apex Court was seized of question emerging from non­appearance of Counsel and the observation of the Apex Court is edifying. 8. The Apex Court observed that the disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. It was further observed by the Apex Court that what is the fault of the parties who having done everything in his power and expected of him would suffer because of the default of his advocate. The Apex Court further observed that the problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned• advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. In that case, the Apex Court awarded cost recoverable from the Advocate. Coming to the facts of the present case, as stated supra, the lady being illiterate village lady was ignorant of inaction on the part of her Counsel and was supremely confident that her Counsel would better watch her interest. As stated supra, she had taken all steps to the extent of moving application pursuant to which the trial Court ordered accordingly. Thereafter, the expert report was received by the Counsel. As stated supra, she had taken all steps to the extent of moving application pursuant to which the trial Court ordered accordingly. Thereafter, the expert report was received by the Counsel. However, the Counsel defaulted in bringing on record the said report. As further stated supra, the averments in the affidavit filed by the petitioner that she was unaware whether expert report was brought on record or not have not been controverted by the Opposite parties. In the circumstances, the Court is of the view that impugned order passed by the appellate Court while rejecting the application that the ground urged by the appellant that her Counsel defaulted in bringing on record the expert report cannot be a sufficient ground for admitting the additional evidence on record, does not commend to me for being sustained. In my considered view, the default if any on the part of a lawyer may be a ground in the facts of the present case where a lady is a rustic illiterate village lady unaware of legal niceties and technicalities and in this view of the matter it meets the test of requirements as contemplated in Order 41 Rule 27 of the C.PC. as according to petitioner she could not have any occasion to know that expert report had not been filed by her Counsel. 9. The learned Counsel for the parties cited decisions in support of their respective cases. The first decision cited by learned Counsel for the petitioner is Wadi v. Amilal and others, 2002 (49) ALR 54. From a close scrutiny of the decision, it would appear that it is a decision rendered by the Apex Court considering the provisions under Order 41 Rule 27 (b) of the C.P.C. which envisages that in case appellate Court requires any document to be produced or any witness to be examined to enable to pronounce the judgment or for any substantial cause. Another decision cited is Laxmi Narain v. Smt. Hubraja alias Barki, 1981 A.L.R. 800. It is a case in which this Court held that in case of suit of Pardanashin lady or village illiterate rustic lady filed for cancellation of sale deed, the burden of proof lies on the defendants. Another decision cited is Laxmi Narain v. Smt. Hubraja alias Barki, 1981 A.L.R. 800. It is a case in which this Court held that in case of suit of Pardanashin lady or village illiterate rustic lady filed for cancellation of sale deed, the burden of proof lies on the defendants. In this decision, a Division Bench of this Court considered various decisions including 1965 All LJ 1080, AIH.1963 SC 1203, / 1988 RD 250, AIR 1981 All 222 , 6 O.W.N 169,1963 O.W.N 611 (PC.), 20.W.N 662 (PC.), and 8 O.W.N. 194 to hammer home the point that in case of an illiterate village rustic lady, the burden lies on the shoulder of defendants. I have given my anxious consideration to these decisions, but these decisions cannot be taken aid of inasmuch as at present the dispute arises out of application for admitting Expert report as additional evidence under Order 41, Rule 27, C. PC. All these decisions are worthy of being noticed by the lower appellate Court at the time of hearing of the appeal where the matter is being relegated for decision afresh. 10. The decisions cited by learned Counsel for the Opp. parties have also been traversed upon. The first decision cited is Gurdev Singh and others v. Mehnga Ram and another, 1997 SC (FB) Rent Cases 370. In my considered view, this case is not intended for application to the present case inasmuch as in this case, the application was filed at the time of the final hearing of the First Appeal and the Apex Court held the view that at this stage, the High Court should not have interfered with that order. Another decision cited by learned Counsel for the petitioner is Mohd. Ayub and another v. VII Addl. District Judge Allahabad and others, 2002 (47) ALR 149. In this case no reasons were recorded while disposing of the application under Order 41 Rute 27,.C.P.C. In this case it was pleaded that Order 41, Rule 27 was not attracted and intention was to delay disposal of the appeal. The matter was remanded to learned appellate Court under Order 41 Rule 27, C.P.C. 11. In this case no reasons were recorded while disposing of the application under Order 41 Rute 27,.C.P.C. In this case it was pleaded that Order 41, Rule 27 was not attracted and intention was to delay disposal of the appeal. The matter was remanded to learned appellate Court under Order 41 Rule 27, C.P.C. 11. Considering that the lower appellate Court has not decided the matter on merit and rejected the application only on the ground that Advocate’s fault is no ground under Order 41, Rule 27 of the C.P.C. this Court, upon an over all consideration of discussion made above, is of the view that the application under Section 41 Rule 27, C.P.C. requires reconsideration on merits afresh accordingly. 12. In the result, the writ petition succeeds and is allowed and in consequence the impugned order dated 26.2.2004 is quashed. The matter is relegated to the lower appellate Court for decision on application under Order 41 Rule 27 of the C.P.C. afresh on the basis of materials already on record on merits in the light of the observations contained in the body of this judgment. Petition Allowed. ———