JUDGMENT 1. This writ petition has been filed by the defendants in O.S.No.135/2002 on the file of Prl. Civil Judge (Sr.Dn.), Raichur and the appellants in R.A.35/2007 on the file of the Fast Track Court – I (‘FTC’ for short), Raichur, questioning an order dated 09.09.2009 passed on I.A.VI. By that order, FTC rejected I.A. VI, filed by the appellants/petitioners herein, seeking permission for production of documents, under O 41 R 27 of CPC, in pending first appeal, on the ground that (i) the original sale deed was not produced and only certified copy was produced; (ii) though the suit was pending from 12.07.2002, the application was filed in the appeal only on 19.11.2007, without stating valid reasons for non production in the Trial Court. 2. Material facts of the case are as follows: O.S.135/2002 was filed by the respondents, against the petitioners, to pass a decree declaring that they are the actual owners of the suit land and for restoration of its possession by clearing all the obstructions, constructions if any, and for rectification of RoR by entering their names, or in the alternative, to grant/award the market value of the suit property to them as cost of acquisition. The suit was filed on 12.07.2002 and the written statement was filed on 19.11.2003. Suit was decreed on 26.06.2006. 3. Feeling aggrieved, defendants filed R.A.35/2007. I.A. VI was filed by the appellants, under O 41 R 27 of CPC, to grant permission to produce the documents as per the enclosed list. Statement of objections was filed to I.A. VI. Application was allowed on 22.02.2008. Respondents questioned the said order, in W.P.4944/2009. Since the impugned order was cryptic, the same was quashed and Court below was directed on 15.09.2008, to consider I.A. VI, in accordance with law. I.A. VI, upon consideration, having been found to be devoid of merit, was rejected on 09.09.2009. The said order is under challenge in this writ petition. 4. Heard the learned Advocates for the parties and perused the record. 5. In my opinion, in order to decide the appeal, in which I.A. VI was filed, under O XLI R 27 of CPC, Appellate Court ought to have taken up, along with the appeal, I.A. VI seeking permission for production of documents, for consideration. 4. Heard the learned Advocates for the parties and perused the record. 5. In my opinion, in order to decide the appeal, in which I.A. VI was filed, under O XLI R 27 of CPC, Appellate Court ought to have taken up, along with the appeal, I.A. VI seeking permission for production of documents, for consideration. The provision of Rule 27 of Order XLI, in so far as it is relevant, reads as follows: “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) ….. (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) …… (emphasized by me) 6. The intention of the provision noticed supra, in my opinion is that, a party, who, for reasons mentioned in sub-clause (aa), was unable to produce the evidence in the Trial Court, should be enabled to produce the same in the Appellate Court. The sub-rule has the conditions, which must be complied with by the party producing the evidence, in that, ‘notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after exercise of due diligence, be produced by him” in the Trial Court. FTC has failed to notice the provision in the correct perspective. 7. In State of Rajasthan Vs. T.N. Sahani and Others – (2001) 10 SCC 619 , taking into consideration, dismissal of an application filed under O 6 R 17, application filed under O 41 R 27 was disallowed by the High Court. When questioned before the Apex Court, it has been held that, taking a view on the application filed under O 41 R 27 CPC before hearing of the appeal would be inappropriate. 8. The Court below has committed error and illegality in taking up I.A. VI alone for consideration, without simultaneously taking up the appeal for consideration. Appellate Court ought to have taken up the appeal, along with I.A. VI filed for permission to produce additional evidence – documents. The procedure adopted by the Court below is irrational and the impugned order is illegal. Appellate Court ought to have taken up the appeal, along with I.A. VI filed for permission to produce additional evidence – documents. The procedure adopted by the Court below is irrational and the impugned order is illegal. In the result, writ petition is allowed and the order under challenge, noticed supra, is quashed. It will now be for the Appellate Court, to examine I.A. VI along with the appeal and decide the matter in accordance with law.” It is made clear that, I have not gone into the merits of I.A. VI, which is kept open to be decided by the Appellate Court. The parties are directed to appear before the Appellate Court on 30.06.2012 and receive further orders. The Court below is directed to decide the appeal expeditiously and before 30.11.2012. No costs.