ORDER 27.6.2008 — Challenge has been made in this writ petition to the order dated 28.6.1996 passed by the learned Addl. District Judge, Balasore in S.J.Appeal No. 21 of 1988 allowing the petition filed by the opposite parties 1 and 2 under Order 41, Rule 27 of the Civil Procedure Code. The appellate Court allowed the application for acceptance of additional evidence by framing an additional issue and issued a direction to give specific finding on the said issue to the trial Court without hearing the appeal on merit. The Supreme Court in the case Arjan Singh v. Kartar Singh and others, reported in AIR (38) 1951 SC 193 has held that “The true test, therefore, is whether the appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced”. From the above, it is crystal clear that the necessity can be adjudged upon examining the evidence which is ordinarily done after the commencement of hearing. Therefore, the occasion for admitting the additional evidence will arise only during the course of hearing of the appeal or examination of the evidence. The reference in this regard made to the decision reported in 53 (1982) CLT 552 (State Bank of India v. M/s. Ashok Stores and others) and 1998 (II) OLR 129 (Sukru Bibhar v. Tileswar Naik and others). But from the impugned order it reveals that the lower appellate Court has considered the application under Order 41, Rule 27 of the Civil Procedure Code and accepted the same without examining the evidence or hearing the application on merit. Therefore, this Court in exercise of the power under Article 227 of the Constitution of India sets aside the impugned order dated 28.6.1996 passed by the learned Addl. District Judge, Balasore in S.J.Appeal No. 21 of 1988 and directs the learned Addl. District Judge, Balasore to rehear the appeal after following the due procedure as stated above. Therefore, this Court in exercise of the power under Article 227 of the Constitution of India sets aside the impugned order dated 28.6.1996 passed by the learned Addl. District Judge, Balasore in S.J.Appeal No. 21 of 1988 and directs the learned Addl. District Judge, Balasore to rehear the appeal after following the due procedure as stated above. Since this is an old appeal and as both the parties have appeared through their counsel in this Court, this Court fixes the date of appearance of the parties before the lower appellate Court to 15th July, 2008 and on the said date petitioner will produce the certified copy of this Court and the lower appellate Court will fix a date of hearing of the appeal and dispose of the same as quickly as possible, preferably by end of November, 2008 in accordance with law. The writ petition is disposed of. Petition disposed of.