JUDGMENT 1. Heard finally. 2. This appeal under Order 43 Rule 1(u) CPC against the order dated 8.8.2017 passed by 1st Additional District Judge, Guna in C.A. No. 51A/2016, thereby remanding the matter back to the Trial Court. 3. The necessary facts for the disposal of the present appeal in short are that the plaintiff/appellants had filed a suit for declaration of title, permanent injunction in respect of agricultural land bearing survey No. 576/1 area 1.380. It is the case of the appellants that Girdharlal and Navneet Lal were the owners of the said land. They had given to the appellants on Sikmi in Samvat 2023 on the condition that the appellants shall also pay the land revenue. As the appellants acquired the Bhumiswami rights, therefore, they filed an application under section 110 and 190 of M.P.L.R. Code before the Naib Tahsildar Myana which was registered as case No. 10-A-6/86-87 and by order dated 27.3.1987, the appellants were declared Bhumiswami and their names were mutated in revenue records. Against the said order, the defendants filed an appeal after 24-25 years and also tried to forcibly take possession of the disputed property. On 1.7.2002, the defendants No.1 to 3, by projecting themselves to be the son of Girdharlal, extended a threat that they would take possession of the same. Accordingly, the suit was filed. 4. The defendants No.1 to 3 filed a joint written statement and pleaded that Late Girdharlal was their father whereas Late Navneetlal was their Uncle. Navneetlal was issueless. The disputed property was given by Shrimant Maharaja Daulatrao Sahab in Dharmada Maufi to Shri Ratanlal, the predecessor of defendants and after the death of Ratanlal, the land was succeeded by Girdharlal and Navneet Lal. The defendants are their legal heirs and they have filed an appeal before the Court of S.D.O., which is pending. It was further pleaded that Late Girdharlal and Navneet Lal had never given the property on Sikmi. 5. The trial Court after framing issues and recording evidence, decreed the suit by Judgment and Decree dated 20.12.2014 passed in C.S. No. 11A/2014. 6. It was further pleaded that Late Girdharlal and Navneet Lal had never given the property on Sikmi. 5. The trial Court after framing issues and recording evidence, decreed the suit by Judgment and Decree dated 20.12.2014 passed in C.S. No. 11A/2014. 6. Being aggrieved by the Judgment and Decree, the respondents filed an appeal which was registered as R.C.A. No. 51A/2016 and the same has been allowed by order dated 8.8.2017 passed by 1st Additional District Judge, Guna and after allowing the application filed under Order 41 rule 27 C.P.C., has remanded the matter back. 7. Challenging the order of remand, it is submitted by the Counsel for the appellant that the Court below has not considered that an application under Order 41 rule 27 CPC cannot be allowed in a routine manner and has not dealt with the restrictions imposed in rule 27 of Order 41 CPC. 8. Per contra, it is submitted by the Counsel for the respondents, that Navneet Lal had expired on 30.4.1981, whereas the Naib Tahsildar, by his order dated 27.3.1987, conferred the Bhumiswami rights on the plaintiff without impleading the legal representatives of Navneet Lal, therefore, it is clear that the order dated 27.3.1987 was passed against a dead person. 9. Heard the learned Counsel for the parties. 10. Order 41 rule 27 CPC reads as under : 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) Whenever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. 11. (2) Whenever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. 11. Thus, the party seeking to produce additional evidence, has to establish that notwithstanding the exercise of due diligence, such additional evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him. 12. The Supreme Court in the case of Union of India v. Brahim Uddin, reported in (2012) 8 SCC 148 has held as under : 36. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41 rule 27 CPC enables the appellate Court to take additional evidence in exceptional circumstances. The appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy.) 37. The appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.) 38. Under Order 41 rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. Iqbal and Mohd. Ali and Co.) 38. Under Order 41 rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. (Vide Lala Pancham.) 39. It is not the business of the appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the trial Court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower Court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower Court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam.) 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower Court so imperfectly that the appellate Court cannot pass a satisfactory judgment. The Supreme Court in the case of Pramod Kumari Bhatia v. Om Prakash Bhatia, reported in (1980) 1 SCC 412 has held as under: 8. Before the High Court, Pramod Kumari filed an application for reception of additional evidence. The principal additional evidence sought to be adduced was an alleged letter said to have been written by late Pearey Lal Singh to the Bank nominating Pramod Kumari as the person entitled to the amount in deposit with the Bank. The letter itself was not filed along with the application but a request was made to summon the letter from the Bank. The High Court rejected the application. The application to the High Court was made very many years after the suit had been filed, and also quite some years after the appeal had been filed before the High Court, and we do not think that we will be justified in interfering with the discretion exercised by the High Court in refusing to receive additional evidence at that stage. The appeal is therefore dismissed but in the circumstances with no order as to costs. The Supreme Court in the case of Jagdish Prasad Patel v. Shivnath, reported in (2019) 6 SCC 82 has held as under : 29. Under Order 41 rule 27 CPC, production of additional evidence, whether oral or documentary, is permitted only under three circumstances which are: (I) where the trial Court had refused to admit the evidence though it ought to have been admitted; (II) the evidence was not available to the party despite exercise of due diligence; and (III) the appellate Court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower Court. However, in the interest of justice and when satisfactory reasons are given, the Court can receive additional documents. 30. In Union of India v. Ibrahim Uddin, this Court held as under: (SCC pp. 167-68 and 170, paras 36-37, 40 and 47) "36. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate Court to take additional evidence in exceptional circumstances. 167-68 and 170, paras 36-37, 40 and 47) "36. The general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate Court to take additional evidence in exceptional circumstances. The appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn., Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy.) 37. The appellate Court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co..) * * * 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. * * * 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed." 13. * * * 47. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed." 13. Thus, it is clear that generally the appellate Court should not travel beyond the record of Lower Court, however, permission may be granted for additional evidence provided the conditions laid down in rule 27 of Order 41 CPC are fulfilled. The discretion is with the Court which should be exercised sparingly. 14. In the present case, the respondent had filed two applications under Order 41 rule 27 CPC, however, both the applications are completely silent as to why the documents filed along with the applications were not filed at the earliest. Now the question for consideration is that in absence of any explanation for not filing the documents before the Lower Court, whether the Court below was justified in allowing the applications filed under Order 41 rule 27 CPC? 15. The respondent had filed a death certificate to show that Navneet Lal had expired on 30.4.1981. Although this death certificate is dated 12.3.2015, but unless and until, the same is set aside, it will be a valid document, according to which Navneet Lal had expired on 30.4.1981, whereas the plaintiff was declared Bhumiswami by order dated 27.3.1987. Thus, prima facie it appears that order dated 27.3.1987 was passed against a dead person. 16. It is well established principle of law that an order passed against a dead person is a nullity and can also be challenged, when the same is put for execution. The Supreme Court in the case of Gurnam Singh v. Gurbachan Kaur, reported in (2017) 13 SCC 414 has held as under : 13. The short question which arises for consideration in this appeal is whether the impugned order allowing the plaintiff's second appeal is legally sustainable in law? In other words, the question is whether the High Court had the jurisdiction to decide the second appeal when the appellant and the 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record? 14. In other words, the question is whether the High Court had the jurisdiction to decide the second appeal when the appellant and the 2 respondents had expired during the pendency of appeal and their legal representatives were not brought on record? 14. In a leading case of this Court in Kiran Singh v. Chaman Paswan, the learned Judge Venkatarama Ayyar, J. speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature: (AIR p. 342, para 6) "6. … It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties." 15. The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons? In our considered opinion, it is a nullity. The reasons are not far to seek. 16. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved, to file an application under Order 22 rules 3 and 4 of the Code of Civil Procedure, 1908 (for short "the Code") for bringing their names on record in place of the dead persons to enable them to continue the lis. 17. The law on the point is well settled. 17. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated". 17. In the present case, it is the claim of the respondents that since, Navneet Lal had already expired on 30.4.1981, therefore, the order dated 27.3.1987 was passed by Naib Tahsildar against a dead person, and therefore, it is a nullity. It is clear from the judgment and decree passed by the trial Court, it is clear that the respondents had taken the said stand specifically in their written statement. Therefore, this Court is of the considered opinion, that if Navneet Lal had already expired on 30.4.1981, then the order dated 27.3.1987 passed by Naib Tahsildar would be a nullity which can be challenged even in collateral proceedings. Thus, it is held that although the respondents had not given any explanation for not filing the documents before the Trial Court, but the documents filed along with the applications under Order 41 rule 27 CPC are necessary to pronounce the judgment. 18. Thus, the Appellate Court, didnot commit any mistake by allowing the applications filed under Order 41 rule 27 CPC. In view of Order 41 rule 28 CPC., the appellate Court, rightly remanded the matter back to the Trial Court. 19. Ex Consequenti, the order dated 8.8.2017 passed by 1st Additional District Judge, Guna in C.A. No. 51-A/2016 is hereby affirmed. 20. Accordingly, this Misc. Appeal fails and is hereby dismissed.