Rule. Rule returnable forthwith. Heard finally by consent of parties.

2. An order made by the Joint Charity Commissioner, Amravati, on an application in the pending appeal purported to be under Section 70 of the Bombay Public Trusts Act, 1950 (for short the Act) directing verification of the disputed signatures on the alleged resignations and opinion of expert thereon is under challenge in these petitions.

3. Mr.Saboo, learned counsel for the petitioners, vehemently argued that such application could have been moved by the respondents before the Assistant Charity Commissioner- the first Court but that was not done and, therefore, now allowing the respondents referring the matter to the hand writing expert and then recording the evidence would be allowing the respondents to fill in the lacuna. He then submitted that provisions of Section 70(3) of the Act cannot be allowed to be utilized for filling up the lacuna. He then submitted that in case the appellate court records additional evidence and also records a finding on that issue about the alleged resignations, the petitioners would lose their right of appeal and therefore the appellate court ought to have remitted the matter to the Assistant Charity Commissioner for the said purpose.

4. Per contra, Mr.De, learned counsel for respondent no.2 relying on the provisions of Section 70(3) of the Act urged that the Legislature in its wisdom has provided for a specific power in the appellate court to record additional evidence and then dispose of the appeal. He submitted that the crux of the matter is about the truth or otherwise of the alleged resignations and, therefore, the appellate authority has rightly adopted the course of referring the documents to the hand writing expert to find out the truth. He submitted that the petitioners have ample opportunity to cross-examine the said witness, namely the hand writing expert and also lead evidence in rebuttal, if so advised. 5. Learned A.G.P. supported the impugned order. 6. Having heard the learned counsel for the parties and having perused the provision of Section 70(3) of the Act, I find that the appellate court has been empowered by the Legislature to record additional evidence. Provisions of section 70(3) reads thus :

“70. (1) ..... (2) ..... (3) The Charity Commissioner may, after hearing the appellant or any person appearing on his behalf for reasons to be recorded in writing either annul, reverse, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence.” Perusal of the above provisions show that the appellate court has an option either to record the evidence himself or direct the subordinate court to record the evidence or make further enquiry. The appellate court can himself record the additional evidence in terms of the said provision. 7. Provisions of Order 41 Rule 27 of the Code of Civil Procedure 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 evidenc