JUDGMENT : The appellant has preferred this Misc. Appeal being aggrieved by the judgment and decree dated 8.9.1997 passed by the VII Additional Judge to the Court of District Judge, Bhopal in Civil Appeal No. 77-A/1997 thereby case was remanded back to the trial Court for re-trial. 2. Facts of the cases give rise to this Misc. Appeal in short is that it is undisputed that one Sheetal Prasad was the owner of the house, who died in 1930. His widow Munakka Bai died in 1984. Sheetal Prasad and Munakka Bai had two daughters namely Narayani Devi and Narbadi Bai. Both were married. Narbadi Bai died in 1943 leaving behind a son namely, Jagdish Prasad who was the plaintiff of the original suit. 3. Plaintiff/appellant filed a suit for declaration that he is in possession of the suit house as co-owner and gift deed executed by Munakka Bai on 18.12.1973, is illegal and void abinitio, because Munakka Bai was not able to execute the gift deed due to old age and mental disorder. 4. Defendant/respondent denied the pleading of plaintiff/appellant and pleaded that Munakka Bai gifted the disputed house to her and she became the absolute owner of the disputed house. 5. Learned trial Court after appreciating the evidence on record allowed the suit of plaintiff/appellant and declared that gift deed dated 18.12.1973 is null and void. Being aggrieved defendant Narayani Devi filed a Civil Appeal No.77-A/97 against the judgment and decree of the trial Court. 6. Before the First Appellate Court, defendant/respondent filed an application under Order 43 Rule 27 of the Code of Civil Procedure for additional evidence and show the sufficient cause for non-production of the gift deed in the Lower Court. Learned First Appellate Court allowed the same and the case remanded to the Trial Court with the direction that defendant/respondent will file the original gift deed in Lower Court and after taking the same on record, Lower Court shall give opportunity to the parties for producing the evidence on the document and dispose of the case according to law. Hence this Miscellaneous Appeal. 7. Learned counsel for the appellant submitted that trial Court committed error in exercising the jurisdiction under Order 41 Rule 27 of CPC. She further submitted that trial Court has failed to appreciate that this provision is not intended to enable the party to fill the lacunas of the case. Hence this Miscellaneous Appeal. 7. Learned counsel for the appellant submitted that trial Court committed error in exercising the jurisdiction under Order 41 Rule 27 of CPC. She further submitted that trial Court has failed to appreciate that this provision is not intended to enable the party to fill the lacunas of the case. She further submitted that First Appellate Court failed to appreciate the fact that a certified copy of said gift deed dated 18.12.1973 was already exhibited on record and defendant/respondent failed to examine the attesting witness which was fatal to the case of defendant/respondent. In these circumstances, finding recorded by First Appellate Court is amount to allowing the defendant/respondent to fill up the lacuna which is not permissible in law. 8. Learned counsel for the respondent submitted that defendant/respondent shows sufficient cause for non-production of gift deed before the Trial Court, therefore, First Appellate Court did not commit any illegality in passing the impugned judgment. 9. I have perused the impugned Judgment, record of the Appellate Court and Trial Court and other material on record. 10. No doubt the case of defendant/respondent was solely based on gift deed, which is said to be executed by Smt. Munakka Bai and case of plaintiff is that such gift deed had never been executed by Smt. Munakka Bai, therefore, she filed a suit for declaration of the same deed as null and void abinitio. 11. On perusal of the record of the trial Court, it reveals that witness Rajesh Kumar (PW4), registration clerk of the office of Sub Registrar, Bhopal was called, to prove the certified copy of gift deed dated 18.12.1973 as secondary evidence. It is nothing on record that how trial Court allowed the defendant to examine this witness without ascertaining the fact that original gift deed has been lost or not available with the defendant/respondent. During pendency of first appeal, application under Order 41 Rule 27 of CPC was filed with an averment that defendant Narayani Devi is an old aged and less educated lady, who handed over the original gift deed to her counsel and due to mistake of her counsel, the document was not produced before the trial Court. The application was supported by an affidavit of Narayani Devi. 12. The application was supported by an affidavit of Narayani Devi. 12. Appellant Jagdish Prasad Saxena (since deceased) had not filed any reply of this application as well as he had not filed any affidavit to contradict the affidavit of Narayani Devi. 13. The amended provision of Order 41 Rule 23-A inserted by Code of Civil Procedure (amendment) 1976 w.e.f. 1.2.1977, enabled the Appellate Court to remand back the case for re-trial other than the preliminary point if the First Appellate Court considered that re-trial is necessary for ends of justice. 14. On careful scrutiny of affidavit and application filed under Order 41 Rule 27 of CPC, it reveals that Narayani Devi is a less educated lady, she is only able to write her name in place of signature. She fairly stated on oath that she handed over the document (gift deed), in question, to her counsel Shri D.K. Saxena and Shri D.K. Saxena told her after decision of the trial Court that by his mistake the original document was remained in his Almirah. But this fact was not contradicted by the appellant before First Appellate Court. 15. In these circumstances, the First Appellate Court after considering over all facts and circumstances of the case, in the ends of justice, directed the trial Court to take the aforementioned documents on record and shall give an opportunity to the parties to lead their evidence and dispose of the case in accordance with law, has not committed any illegality. 16. In the result, I am of the view that there is no illegality committed by the trial Court in passing the impugned judgment and decree, therefore, the appeal deserves to be dismissed and is hereby dismissed. 17. Considering the facts and circumstances of the case, parties are directed to bear their own costs.