JUDGMENT : 1. This second appeal is from judgment dated 31st January, 2006 of the 8th Court of Civil Judge (Senior Division) at Alipore in Title Appeal no.50 of 2001. The defendants in the suit are the appellants. 2. The second appeal was admitted on the following substantial question of law. “Whether the learned court of appeal below committed substantial error of law in relying upon additional evidence taken before the learned first appellate court below after allowing an application under Order XLI Rule 27 of the Code of Civil Procedure by not giving opportunity to the present appellants to give evidence on rebuttal in clear violation of Order XLI Rule 28 of the Code?” 3. The facts, so far as they are relevant for the purpose of adjudication of this appeal, are that the respondents sued for recovery of possession on the ground that lease dated 18th September, 1964 stood determined by efflux of time limited thereby. The suit was decreed by the Trial Court. The Appellate Court affirmed the judgment and decree but in doing so had allowed additional evidence to be produced by the respondents. 4. Mr. Ghosh, learned senior advocate appeared on behalf of the appellants and submitted, there can be no dispute that the plaint did not mention a registered deed of lease. One of the issues before the Trial Court was whether the appellants are tenants under the respondents. The respondents’ case made out in their application under Order 41 Rule 27 of the Code of Civil Procedure was, inter alia, as is reproduced below:- “3. That your Petitioners adduced evidence in the Suit, and filed a stamped copy of the said Deed of Lease which was exhibited by the Ld. Court without objection from the side of the Defendants/Appellants. Be it mentioned here that the original Deed of Lease which is a registered one is in the possession of the Appellants/Defendants who did not adduce any evidence in the Suit that the Lease was not a registered one. xxx xxx xxx 6. ….. Your Petitioners further submit that the Ld. Court without objection from the side of the Defendants/Appellants. Be it mentioned here that the original Deed of Lease which is a registered one is in the possession of the Appellants/Defendants who did not adduce any evidence in the Suit that the Lease was not a registered one. xxx xxx xxx 6. ….. Your Petitioners further submit that the Ld. Court may be pleased to admit into evidence the certified copies of the said Index 1, page 14, so far it relates to the Lessor Nagendra Nath Naskar, and the certified copy of the Index 1(A) at page 72, so far it relates to Associated Electronics in to evidence (filed herewith by Firisth), as because the said certified copies dispel the doubt of the Ld. Court, if any, as to whether the Lease-in-question was a registered one, or not. Your Petitioners have annexed the xerox copies of the said documents to this Petition, which are marked as A and A (1). The Ld. Court may please to admit the said certified copies (two sheets) into evidence in order to enable the Ld. Court to pronounce the Judgment. The said certified copies came in possession of your Petitioners towards the end of April, 2005, and as the point was not agitated in the Ld. Court below, your Petitioners did not attempt to show the said documents in the Ld. Court below.” 5. He submitted, his clients’ case in opposition to the said application was that additional evidence was not necessary to be produced and the application should be dismissed. In rejecting his clients’ contention, the lower Appellate Court while admitting documents in evidence did not give opportunity to his clients to rebut the inference drawn from such documents. The lower Appellate Court erred in not giving opportunity to the appellants to lead evidence in rebuttal whereby no such inference could be drawn. He relied on Order 41 Rules 27 to 29 to submit, the lower Appellate Court allowed production of documents but in the reasons given for allowing the same, it drew an inference of fact being the existence of a registered deed of lease which inference could not be rebutted by his clients though they had a right to attempt to do so in law. 6. Mr. 6. Mr. Ghosh, relied upon a decision of the Supreme Court in the case of the Land Acquisition Officer, City Improvement Trust Board, Bangalore vs. H. Narayanaiah etc. reported in AIR 1976 SC 2403 , in particular to paragraphs 24 and 28. Paragraphs 24 and 28 are reproduced below:- “24. Another contention which found favour in the Karnataka High Court was that a judgment filed by the respondents claimants in Civil Appeals nos.644-650 of 1974, when they appealed to the Karnataka High Court against the orders passed by a Civil Judge of Bangalore, on a reference made under the Acquisition Act, could be accepted as additional evidence under Order 41, Rule 27, C.P.C. on the ground that it was relevant evidence for the purpose of determining compensation of lands which were the subject-matter of appeals before the High Court. The reasons given for admitting, at the appellate stage, a judgment of the High Court, which had not been filed before the Trial Court, were: firstly, that it was not available when the proceedings were pending in the Trial Court and secondly, that lands dealt with by the judgment were adjacent to the lands the value of which needed determination, and that both sets of lands were acquired at different stages of what is known as the “layout scheme within the limits of Bhinnamangala village.” The High Court overruled the objection that the judgment admitted as additional evidence was not final inasmuch as an appeal against it was pending in this Court. 28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the C.P.C. which require that an appellate Court should be satisfied that the additional evidence is required to enable them either to pronounce judgment or for any other substantial cause. It has recorded no reasons to show that it had considered the requirements of rule 27, Order 41, of the C.P.C. We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.” 7. Mr. Probal Kumar Mukherjee, learned senior advocate appeared on behalf of the respondents. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.” 7. Mr. Probal Kumar Mukherjee, learned senior advocate appeared on behalf of the respondents. He submitted, his endeavor would be to demonstrate firstly that the case does not involve the substantial question of law formulated. According to him, the appellants had notice of a lease having been executed as pleaded in the plaint. That the relationship between the parties arose out of the lease was the clear case made. In the written statement there was no contrary case pleaded to the effect that there was no lease or that such was so because the deed was not registered. Exhibit-‘2’ is the copy of the deed of lease tendered by his clients since the original is in the custody of the appellants. The appellants had themselves tendered Exhibit-‘Ga’, a registered deed of assignment dated 23rd October, 1971, by which the unexpired period of the lease was assigned to the appellant no.2 by the partners of the appellant no.1. That being the case of the appellants, the lower Appellate Court had found that copy of the said lease was duly marked exhibit without any objection, execution of lease deed between the respondents and the appellant no.1 was admitted by the defendant no.2 in his written statement, it was the specific defence case of the appellant no.2 that by the said deed of assignment he had purchased lease hold right in respect of the suit property for the unexpired period of the lease and as such the appellant no.2 was estopped from challenging the said fact. According to Mr. Mukherjee, the said fact referred to by the first Appellate Court was the fact of existence of lease by a deed duly registered. It thus was not necessary for the said court to require production of additional evidence nor was the finding of existence of lease dependant on the additional evidence produced. In the circumstances, the substantial question of law formulated was not involved in the case. 8. Without prejudice to the above argument Mr. Mukherjee, submitted further, Rule 27 of Order 41 provided that the Appellate Court may allow such evidence or document to be produced or witness to be examined. In the circumstances, the substantial question of law formulated was not involved in the case. 8. Without prejudice to the above argument Mr. Mukherjee, submitted further, Rule 27 of Order 41 provided that the Appellate Court may allow such evidence or document to be produced or witness to be examined. This is a case where the lower Appellate Court had allowed production of documents as additional evidence on the requirement of the Court to enable it to pronounce judgment and the same did not admit of any opportunity being granted to the appellants for producing evidence in rebuttal. Therefore, the substantial question of law formulated should be answered in the negative and in favour of the respondents. 9. Mr. Mukherjee relied on the following decisions:- (1)(a) Damodar Lal Vs. Sohan Devi & Ors. reported in (2016) 3 SCC 78 , in particular to paragraph 12 therein and (b) Syeda Rahimunnisa Vs. Malan Bi (Dead) by legal representatives & Anr. reported in (2016) 10 SCC 315 , in particular to paragraphs 28 to 36 therein to submit, as in those cases, in this case too, the question formulated cannot be regarded as satisfying the test of being a substantial question of law within the meaning of section 100 of the Code of Civil Procedure. (2) Lisamma Antony & Anr. Vs. Karthiyayani & Anr. reported in (2015) 11 SCC 782 , in particular to paragraphs 15 to 17 therein to submit that there should not be a remand for re-appreciation of evidence and fresh decision in the matter which would be nothing but harassment of the respondents. (3) Union of India Vs. Ibrahim Uddin & Anr. reported in (2012) 8 SCC 148 , in particular paragraphs 47 to 49 and 52 therein to submit that an application under Order 41 Rule 27 of the Code for adducing additional evidence to remove the cloud of doubt of the case and the evidence having a direct and important bearing on the main issue in the suit renders it imperative to be allowed as was the finding of the Appellate Court below. The application was considered at the time of hearing on merits and the Appellate Court required the evidence sought to be adduced to enable it to pronounce judgment. In such circumstances the Appellate Court allowed the application and there was no procedural defect of the appellant being denied opportunity of adducing rebuttal evidence. The application was considered at the time of hearing on merits and the Appellate Court required the evidence sought to be adduced to enable it to pronounce judgment. In such circumstances the Appellate Court allowed the application and there was no procedural defect of the appellant being denied opportunity of adducing rebuttal evidence. (4) Gurvachan Kaur & Ors. Salikram reported in (2010) 15 SCC 530, in particular paragraph 10 therein to submit that interference in second appeal by this court would necessarily have to be on a finding that what was found by the Appellate Court on the fact of those being a lease of the demise to the appellant, was perverse. (5) Dwijendra Lal Roy & Ors. Vs. Smt. Dipta Rani Chowdhury reported in (2007) 1 CLJ (Cal) 493, in particular paragraph 8 therein which is reproduced below:- “8. It appears that the defendant filed an application under Order 41 Rule 27 of the C.P.C. for producing additional evidence in the learned First Appellate Court and the learned Appellate Court took up the matter along with the appeal and after hearing arguments of both sides allowed the said application as mentioned in the judgment. Under Order 41 Rule 28 the Appellate Court itself may take such evidence and since the defendant produced the notice to quit at the stage of First Appeal and the learned First Appellate Court having heard the arguments of both sides marked the said notice as Exhibit-‘D’. I find that the learned First Appellate Court while marking the said notice to quit as Exhibit-‘D’ did not commit any error in law and the provision of Order 41 Rules 28 and 29 were not treated in breach.” 10. Mr. Ghosh submitted, the decisions relied upon by Mr. Mukherjee were not applicable for the purpose of answering the substantial question of law formulated. 11. To answer the aforesaid substantial question of law it is necessary to look at the provisions in Rules 27 to 29 of Order 41. The said provisions are set out below:- “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. To answer the aforesaid substantial question of law it is necessary to look at the provisions in Rules 27 to 29 of Order 41. The said provisions are set out below:- “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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 28. Mode of taking additional evidence.- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. 29. Points to be defined and recorded.- Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.” 12. Production of additional evidence in the Appellate Court is possible only if the conditions in the exceptions therein are satisfied. The conditions are either the evidence is that which ought to have been admitted or could not be produced at trial in spite of due diligence or the requirement of the Appellate Court of any document or witness to be examined. The three things being evidence, document and examination of witness jointly and severally constitute additional evidence. The mode for taking the same has been provided for in Rules 28 and 29 regarding the manner and points on which such evidence is to be taken. The three things being evidence, document and examination of witness jointly and severally constitute additional evidence. The mode for taking the same has been provided for in Rules 28 and 29 regarding the manner and points on which such evidence is to be taken. As per Rules 28 and 29 the additional evidence is to be taken either by the Appellate Court itself or the Court from whose decree the appeal is preferred or any subordinate Court. Such evidence is to be taken on the points specified by the Appellate Court. The points specified by the Appellate Court must be recorded in its proceedings. The taking of evidence as relates to the production of documents, as is the case here where the Appellate Court below has allowed production of them, the documents being themselves admissible in evidence, gave rise to the substantial question of law since opportunity to the respondents therein, for adducing rebuttal evidence, was not granted. 13. The lower Appellate Court, upon seeing the documents sought to be produced, expressed the following view in allowing the application for taking additional evidence. The relevant portions from its judgment are reproduced below: “……Now, let us see the certified copy of the index which is filed before this Appeal Court for acceptance as additional evidence for the purpose of pronouncing judgment in this case. From the certified copy of the index, I find that there is a column where the names of Nagendranath and deft. no.1, Associated Electronics are appearing. It further appears that said deed was registered before the Sealdah A.D.S.R. and the serial number of the Deed was 2014, Page 116 to 125, index no.1, Column no.45 of 1964. Though the document do not bear any column for the property under the deed, but in the column where the names and addresses of the parties are written. There I find the address of the suit property which is shown to be the address of the lessor………..… I am of the view that plaintiff/respondent has proved that there was a lease on 18.9.64 between the lessor, Nagendranath, since deceased and defendant no.1 for period of 21 years. There I find the address of the suit property which is shown to be the address of the lessor………..… I am of the view that plaintiff/respondent has proved that there was a lease on 18.9.64 between the lessor, Nagendranath, since deceased and defendant no.1 for period of 21 years. Considering the fact and circumstances, I am of the view that it is a fit case where for ends of justice and for proper adjudication of the disputes between the parties, the prayer of the plaintiff/respondent for taking additional evidence should be allowed.” 14. In this case the additional evidence, being documents, was taken by the Appellate Court below itself by its judgment. Perusal of the order sheet of the lower Appellate Court reveals that after the hearing of the appeal had commenced, by order no.52 dated 10th June, 2005 it was recorded that the respondents had filed a petition under Order 41 Rule 27 of the Code of Civil Procedure, copy served and objection raised. The respondents had also filed documents as per firisti upon copies also served. Order no.54 dated 3rd August, 2005 recorded that the appellants had filed their written objection to the said application and thereafter several orders were made regarding hearing of the appeal. In order no.67 dated 12th January, 2006 there is record of the appeal having been heard in full and in order no.68 dated 31st January, 2006, that the judgment was passed and pronounced in open court, delivered in ten separate sheets of paper. The point on which the additional evidence was to be confined was not specified in those orders made during hearing of the appeal. The necessity of points to be defined and recorded, as required by Rule 29, is to ensure that the additional evidence to be produced is confined to the points specified. The parties will then be on notice of the points in the matter of the taking of such evidence, when adduced by one party to be tested by the other in accordance with law. The lower Appellate Court in taking the additional evidence on the application of the respondents but without specifying the point on which it was to be confined, committed substantial error of the law provided in Rules 28 and 29 in Order 41 of the Code of Civil Procedure, 1908. 15. The lower Appellate Court in taking the additional evidence on the application of the respondents but without specifying the point on which it was to be confined, committed substantial error of the law provided in Rules 28 and 29 in Order 41 of the Code of Civil Procedure, 1908. 15. In H. Narayanaiah (supra) a party wanted to rely on a judgment as a piece of additional evidence. While the Supreme Court held that the Karnataka High Court, being the Appellate Court, had not complied with the provisions of Order 41 Rule 27 of the Code of Civil Procedure, which required that an Appellate Court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause, it opined that if the High Court found it necessary to admit such evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading other evidence. The said opinion supports the view taken above that the manner in which the Appellate Court below took the additional evidence was in non-compliance of the provisions in Rules 28 and 29 of Order 41. 16. The cases relied upon by the respondents must dealt with. Damodar Lal (supra) and Syeda Rahimunnisa (supra) are not applicable as relied upon since this Court in hearing the second appeal is to adjudicate whether or not the substantial question of law formulated is involved in this case, and if yes, which way it is to be answered. Whether or not the substantial question formulated is a substantial question of law within the meaning of section 100 of the Code of Civil Procedure is not up for adjudication in this appeal. Lisamma Antony (supra) and Ibrahim Uddin (supra) relied upon are not applicable to this case as the Supreme Court was not considering what should be the procedure for taking additional evidence in those cases. Gurvachan Kaur (supra) is also not applicable because the question formulated in this appeal relates to the procedure of taking of additional evidence in appeal. The said question does not relate to perversity of any finding of fact. In Dwijendra Lal Roy (supra) the finding in second appeal was that the learned first Appellate Court having heard the argument of both sides, marked a notice as exhibit “D”. The said question does not relate to perversity of any finding of fact. In Dwijendra Lal Roy (supra) the finding in second appeal was that the learned first Appellate Court having heard the argument of both sides, marked a notice as exhibit “D”. Hence, the finding that the learned first Appellate Court, while marking the said notice as exhibit “D”, did not commit any error in law and the provisions of Order 41 Rules 28 and 29 were not treated in breach. 17. This Court holds that the substantial question of law formulated is involved in the case. The same is answered in the affirmative and in favour of the appellants. The judgment dated 31st January, 2006 is set aside to that extent. The matter is restored to the lower Appellate Court. The said Court is directed to specify the point on which additional evidence is to be taken and thereafter itself take the evidence or make appropriate directions for it being taken. Upon the additional evidence having been taken, the lower Appellate Court will decide the point specified as expeditiously as possible. 18. This second appeal thus, stands disposed of.