( 1 ) THIS Civil Revision Application arises under the following circumstances:-

( 2 ) A suit was filed in the Court of the Civil Judge Jr. Dn. Rajkot in connection with certain property. The parties at the trial of that suit rested content with leading oral evidence only and no documentary evi- dence was led. The defendants pleaded that on an exchange of lands which had come about through certain official proceedings of the then Gondal State the property in question had come to the ancestors of the defendants. No attempt appears to have been made by the parties to lead any evidence regarding the records of Gondal State before the learned trial Judge. The learned trial Judge decreed the plaintiffs suit purely on appreciation of the oral evidence that had been led before him. Against this decision the defendants went in appeal and two applications were presented by different defendants one being Ex. 11 before the appellate Court and the other being Ex. 14 before the appellate Court asking the appellate Court to take on record documentary evidence in the shape of certified copies of the records of the previous Gondal State and of the Political Agency in connection with the alleged exchange of lands and exchange of properties. These two applications were heard by the learned Assistant Judge Rajkot District Gondal camping at Rajkot and by his judgment and order dated February 12 1964 the learned Assistant Judge allowed the applications and the plaintiff was directed to file his objec- tions on February 17 1964 and the documents were directed to be exhi- bited after the objections were received and heard. The present Civil Revision Application has been filed by the heirs of the original Plaintiff against this judgment and order of the learned Assistant Judge.

( 3 ) IT must be made clear at the outset that the hearing of the appeal had not at all commenced before the learned Assistant Judge and the Learned Assistant Judge had taken up first the question whether the addi- tional evidence should be admitted or not. In the course of his judgment the learned Assistant Judge has observed as follows:- the decision given by the learned Judge has been solely based on the oral evidence of the parties and which evidence to my mind could not be construed as sufficient and cogent one to give final decision on the pleas raised by the parties. This record sought to be produced in my candid opinion will determine the rights of the parties and the final decision of the appeal could not effectively be given without the aid of the official record which shows that the exchange of lands between two `patis and how the exchange of the land in question had taken place. With respect to the learned Judge he was putting the cart before the horse and without appreciating the entire material on record while dispos- ing of the application to lead additional evidence he has already expressed an opinion that the rights of the parties would be governed by what is shown in the official record without appreciating the entire evidence oral evidence led before the trial Court and the documentary evidence which he was admitting before the appellate Court into account.

( 4 ) IT is clear that on the facts of this particular case the learned Assistant Judge could only exercise his powers under Order 41 Rule 27 sub-rule (1) (b) of the Civil Procedure Code. That provision is as follows:-THE parties to an appeal shall not be entitled to produce additional evidence. whether oral or documentary in the Appellate Court. Bat if 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 causethe question that I have to consider in this Civil Revision Application is at what stage should the Appellate Court decide whether additional evidence should be permitted to be led or not.

( 5 ) IN the well-known case of Kessowji Issur v. Great Indian Peninsula Railway Company I. L R. 31 B