JUDGMENT : RAJAN ROY, J. 1. Heard Sri Prabhat Kumar learned counsel for the petitioner and Sri Shiv Pal Singh learned counsel for the opposite parties 3 to 5 who are the contesting opposite parties. The learned counsel agree that the opposite parties 2,6,7,8 and 9 are proforma parties being the legal heirs of late Ram Dayal, the husband of the petitioner herein. 2. This is a petition under Article 227 of the Constitution of India challenging an order dated 27.07.2017 passed by the Additional District & Sessions Judge/SCCC II, Ambedkar Nagar in Civil Appeal No. 100 of 2008 (Smt. Fulra Devi vs. Moti Lal & others by which the application of the petitioner-appellant under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the CPC’) has been dismissed. 3. Two points canvassed by Sri Prabhat Kumar learned Advocate firstly, the application under Order XLI Rule 27 CPC could not have been considered and decided before the date of ‘final hearing’ as at this stage there was no question of assessing the evidence led before the trial court nor for the appellate court to arrive at a conclusion as to whether there was any lacuna in the evidence based on which it could arrive at a further conclusion that it required additional evidence to pronounce its judgment, secondly, on account of lack of proper advice by the counsel, in a suit for cancellation of sale-deed, the expert opinion rebutting the opinion adduced in evidence by the plaintiff father-in-law, to belie the assertion that that the sale deed did not bear his signatures and to show that it did bear his signatures, could not be led, and substantial justice required that it be allowed to be led. 4. Sri Prabhat Kumar relied upon the decision of the Supreme Court reported in AIR 2011 SC 559 (Malyalam Plantations Ltd. vs. State of Kerala and another) and ([2012(94) ALR 895] (Union of India vs. Ibrahim Uddin and another) in support of his first contention. 5. On the other hand Sri Shiv Lal Singh appearing for the contesting opposite parties submitted that none of the three ingredients mentioned in the order XLI Rule 27 were established. He also submitted that the plea based on counsel’s fault does not fall within the category of any other substantial cause mentioned in Clause (b) of the Rule 27 of CPC. He also submitted that the plea based on counsel’s fault does not fall within the category of any other substantial cause mentioned in Clause (b) of the Rule 27 of CPC. He also submits that the expert whose opinion could not be filed by the petitioner was in fact examined before the trial court, therefore, the application was absolutely frivolous and not sustainable in law and has rightly been rejected. 6. The very opening line of Order XLI Rule 27 says that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But the provision further goes on to say that 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 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 witness to be examined, if any, petition is filed. 7. No party is entitled to lead additional evidence at the appellate stage as a matter of right under Order XLI Rule 27. Additional evidence would be permissible at the appellate stage only in terms of the said Rule and on the satisfaction of one or more of the three eventualities mentioned therein vide Clause (a), (aa) and (b). It is trite that the three clauses or rules relate to three different situations and the prerequisites for attraction of these three rules are also different. As regards the Clause (a) and (aa) the power is exercised by the Appellate Court on an application being filed by the concerned party, whereas, exercise of power under Clause (b) is not dependent upon such an application being filed and can be exercised by the Court on its own. This is not to say that such power can not be exercised on an application being filed or any defect in the evidence considered by the trial Court being pointed out by the party. This is not to say that such power can not be exercised on an application being filed or any defect in the evidence considered by the trial Court being pointed out by the party. It is also trite that in a given situation where an application has been filed which is referable to Clause (a) or Clause (aa) even then Clause (b) may also be attracted or applied. The scope and purport of Clause (b) of Order 47 Rule 21(1) has been extensively dealt with by the Constitution Bench of the Supreme Court in a case reported in AIR 1965 SC 1008 (The Municipal Corporation of Greater Bombay vs Lala Pancham and others); AIR (38) 1951 SC 193 (Arjan Singh vs. Kartar Singh and other); AIR 1963 SC 1526 (K. Venkataramiah Vs. A. Seetharama Reddy and Ors.) and AIR 1931 PC 143 (Parsotim Thakur Vs. Lal Mohar Thakur). 8. There is no dispute with the legal position in this regard and no dispute has been raised by the parties. What is in dispute is as to at which stage of the appeal the application under Order XLI Rule 27 is to be considered whether at the time of final hearing when the evidence has already been led before the trial Court is to be assessed or even at a stage prior to it. 9. The question herein is as to at what stage the application under Order XLI Rule 27 is required to be considered. 10. Considering the fact that the three Rules referred herein above relate to three different situations and the prerequisites are also different, this Court was inclined to opine that it is only in respect of Clause (b) that the application would be required to be considered at the stage of final hearing in view of the fact that the decision of the Privy Council in Parsotim Thakur (supra) was in respect of Rule/ Clause 27 (1) (b) and not 27 (1) (a) or (aa) and also as other decisions such as in the case of Municipal Corporation of Greater Bombay (supra) and the case of Arjan Singh (supra) as also the case of Kessowji Vs. G.I.P. Railway reported in 34 I.A. 115 to this effect were also in respect of the said provision, but, in view of the subsequent decision in the case of Ibrahim Uddin (supra), wherein the stage at which application under Order XLI Rule 27 is to be considered has been dealt with, this view is not open for being taken by this Court and it is this aspect which has been emphasized by the learned counsel for the petitioner. In the said decision it has been held as under:- 38. An application under Order XLI Rule 27, C.P.C. is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the Court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh and Ors. and Natha Singh and Ors. v. Financial Commissioner, Taxation, Punjab and Ors.. 39. In Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors., it was held: “The provisions of Section 107 as elucidated by Order XLI, 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. Under Rule 27, Clause (1) (b) it is only where the Appellate Court "requires" it (i.e. finds it needful). Under Rule 27, Clause (1) (b) it is only where the Appellate Court "requires" it (i.e. finds it needful). …..… 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", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of 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. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case…….” (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh) 40. In Arjan Singh v. Kartar Singh and Ors. (supra), this Court held: “….If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent... The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Court required to be filled up for pronouncing the judgment.” (Emphasis added) 41. The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the Court required to be filled up for pronouncing the judgment.” (Emphasis added) 41. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored. 11. In the instant case, the application under Order XLI Rule 27, C.P.C. was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.” 12. In the said case the application under Order XLI Rule 27 was filed on 06.04.1998 and it was allowed on 28.04.1999, though, the First Appeal was heard and disposed of on 15.10.1999, therefore, the Supreme Court observed that in view of law referred by it, the judgment and order dated 28.04.1999 is just to be ignored. This is the law on the subject regarding the stage at which the application under Order XLI Rule 27 is to be considered. 13. There is nothing to indicate in Ibrahim Uddin’s case (supra) that the law laid down therein is only in respect of an application referable to Rule 21(1)(b). It is in respect of an application under Order XLI Rule 21. 14. 13. There is nothing to indicate in Ibrahim Uddin’s case (supra) that the law laid down therein is only in respect of an application referable to Rule 21(1)(b). It is in respect of an application under Order XLI Rule 21. 14. Against the aforesaid legal background the Court on a perusal of the order of the Appellate Court as also the application of the petitioner under Order XLI Rule 27 finds that though, the said application is primarily referable to Clause (aa) and Clause (a) is not attracted it did not exclude the consideration in terms of Rule 21(1)(b) while it is true that as per Ibrahim Uddin’s case (supra) inadvertence of parties or inability to understand the legal issues involved or a wrong advice of the pleader or the negligence of the pleader or that the parties did not realize the importance of the documents does not constitute a “substantial cause” within the meaning of Rule 27 aforesaid as per Ibrahim Uddin’s case (supra) it is equally true that as per the same dictum the application under Order XLI Rule 27 is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved and it is at that stage that a proper and effective consideration whether to allow additional evidence or not can be made. 15. In Ibrahim Uddin’s case (supra) it has been observed that application for taking additional evidence on record at appellate stage, even if, filed during the pendency of appeal is to be heard at the time of final hearing of the appeal, at a stage, when after appreciation of the evidence on record, the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such an evidence was required to be taken on record to pronounce the judgment or not, remains inconsequential/in-executable and is liable to be ignored. 16. In case, application for taking additional evidence on record has been considered and allowed prior to hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such an evidence was required to be taken on record to pronounce the judgment or not, remains inconsequential/in-executable and is liable to be ignored. 16. Therefore, as, in the present case the appeal of the petitioner is still pending before the Court and during its pendency i.e. before the stage of final hearing where the evidence etc. is to be examined by the Court, the Appellate Court has considered the application for additional evidence and has rejected the same on 27.07.2017, and the fact that while rejecting the application under Order XLI Rule 27 the Court did not proceed to pronounce the judgment or reserved it for pronouncement but fixed it for hearing on another date and appeal is still pending, this itself shows that it had not heard the matter finally on 27.07.2017 in the manner the decisions referred hereinabove have laid down. On a perusal, the impugned order does not show that the evidence was examined by the Court below and matter was considered accordingly as aforesaid nor in the light of Rule 21 (1)(b), as, on a perusal of the application of the petitioner, though, it is primarily referable to Rule (1)(aa) it can not be said that a consideration in terms of Rule (b) was excluded, therefore, only for this reason it can not be sustained, as, the application has not been considered at the appropriate stage. 17. Certainly, if the application for additional evidence is ‘allowed’ then recourse would have to be taken to Rules 28, 29 etc. and the matter would have to be heard again taking into consideration the additional evidence but the application under Order XLI Rule 27 will have to be considered only at the stage of final hearing preceding the allowing of the said application. 18. In view of what has already been discussed hereinabove, the Appellate Court has erred in considering and deciding the application at a stage prior to actual final hearing of the appeal. In view of the above the other contentions of Sri Prabhat Kumar need not be considered by this Court. The impugned order dated 27.07.2017 is hereby quashed. 18. In view of what has already been discussed hereinabove, the Appellate Court has erred in considering and deciding the application at a stage prior to actual final hearing of the appeal. In view of the above the other contentions of Sri Prabhat Kumar need not be considered by this Court. The impugned order dated 27.07.2017 is hereby quashed. The application under Order XLI Rule 27 shall now stand restored before the Appellate Court for consideration afresh keeping in mind the aforesaid discussion. It is made clear that this Court has not considered the merits of the rival contentions of the parties in respect of the said application which shall be considered by the Appellate Court as per law. 19. With the aforesaid observations the writ petition stands allowed.