The requirement under Order 41 Rule 27(1)(b) CPC is of the court itself and not of the parties, and that the evidence sought to be adduced is necessary to pronounce judgment or that such evidence may be allowed to be produced in the interest of justice when the court considers that something remaining obscure should be cleared or that some inherent lacuna or defect becomes apparent, on an examination of evidence.

This application under Section 115 of the Code of Civil Procedure is directed against Order No. 24 dated 4.4.91 passed by Addl. Judge 4th Court, Burdwan in Title Appeal No. 126/22 of 1989 by which he rejected the application of the plaintiff-petitioner under Order 14 Rule 27 C.P.C.

2. Facts of the case are as follows:-

Petitioner as plaintiff filed Title Suit No. 21 of 1985/24 of 1979 for recovery of khas possession and means profits from the defendant-opposite party on the revocation of the licence in respect of the suit property granted in his favour. Opposite party-defendant No.1 claimed the property as the heir of his mother Paritosh Bala Dasi under whom the plaintiff also claimed his right, title and interest therein alongwith other grounds. The suit was dismissed on contest on 14.8.89 and an appeal was preferred being Title Appeal No. 126/22 of 1989 before the Learned District Judge, Burdwan which was transferred to the Learned Addl. District Judge and the matter is still pending decision. During the pendency of this appeal this application under Order 41 Rule 27 of the Code of Civil Procedure praying for producing the birth certificate of the defendant as an additional evidence in appeal was filed. It was alleged that one of the material issues involved in the suit was whether defendant No.1 is the son of the second wife of Ratan Chandra Pal and in that context the date of the birth of defendant No.1 was very much. material for adjudication of the issue. It was further alleged that the birth certificate could not be traced out before inspite of the petitioner's due diligence and honest efforts. It was further stated that the opposite party has succeeded in collecting the said birth certificate on 8.9.90 from Burdwan Municipality.

3. By the impugned order Learned Court of Appeal below dismissed the said application on the ground that there was lack of diligence on the part of the opposite party to procure the document and that Order 41 Rule 27 of the Code of Civil Procedure shall not come to the aid of the petitioner as there are enough materials on record to pronounce judgment on the above mentioned issue.

4. Mr. Shyama Prasanna Roy Chowdhury, learned Advocate appearing for the petitioner challenged the above finding of the Ld. Court of Appeal below on the ground that the aforesaid order was passed without proper appreciation of the provisions of Order 41 Rule 27 of the Code of Civil Procedure He, however, did not seriously challenge the finding of the Ld. Court of appeal below from the view point of sub-Clauses (a) and (aa) of Sub-rule 1 of Rule 27 of the Cede of Civil Procedure. He, however, contended seriously that the provisions of Sub-Clause (b) of Clause 1 of Rule 27 for the purpose of production of additional evidence. For this purpose he referred to the decisions reported in (1) AIR 1963 SC 1526, (2) AIR 1965 SC 1008 and (3) 80 CWN 788. It was contended with reference to these decisions that there being some inherent lacuna or defect in the judgment under appeal that the Court ought to have granted leave to produce the evidence for satisfactory and final disposal of the suit. He further submitted that production of the document and the evidenciary value thereof are two entirely different things and the latter will be considered after the evidence is admitted in the point. According to him the Court ought not to have shut the evidence, which being a birth certificate, is very much essential for deciding the question in issue, namely whether defendant No.1 was a son of Paritosh Bala Dasi. He also submitted that under the provisions of Order 41 Rule 27 the Court was not entitled to look into the nature of document as it is not entitled to prescribe oral evidence to be adduced in passing an order under the provision.

5. Mr. Sudhish Dasgupta, learned advocate appearing for the opposite party submitted that the Court shall have look into the document itself for determining the nature of the evidence to be add