( 1 ) HEARD learned Advocates for the parties. This appeal is against order dated 10-1-1991 passed by the Second Extra Assistant Judge, Junagadh allowing the respondent-plaintiffs appeal against judgment and decree dismissing the plaintiffs suit and remanding the case for trial afresh in exercise of power under order 41 Rule 23-A of Civil Procedure Code.

( 2 ) ). The respondent-plaintiff has filed a civil suit in the Court of Civil Judge (J. D.) for possession of land allegedly forming part of Survey No. 35/2 of which he claimed to be exclusive owner of the land admeasuring 4 acres. According to the plaintiff he has purchased the suit land by registered sale deed on 9-3-1960 for consideration of Rs. 2,500. 00 from heirs of Sandhi Kasam Umar and the defendant has purchased the land adjoining the northern side of the plaintiffs land bearing Survey No. 35/ 1 about 6 to 7 years prior to the plaintiff. According to the plaintiff, defendant has encroached upon parcel of land admeasuring about 19 gunthas towards the northern side of Survey No. 35/2, therefore, the present suit for possession and permanent injunction was filed. After the trial suit was dismissed the plaintiff preferred appeal before the lower appellate Court. He moved an application under Order 41 Rule 27 for permitting him to lead additional evidence for proving document Marks 28/1 and 28/2 which had already been filed by him during the suit proceedings. The Court allowed the application under Order 41 Rule 27 and in exercise of its power under order 41 Rule 23 set aside the judgment and decree and remanded the case back to the trial Court for retrial by the impugned order.

( 3 ) THE Court noticed that it was the duty of the plaintiff to examine Surveyor shri Kanoria to prove Marks 28/1 and 28/2 and both the documents are very useful and material to enable the Court to pronounce the judgment. He also opined that document Marks 28/1 and 28/2 which have not been brought on record by examining surveyor are necessary to pronounce judgment in a more satisfactory manner and therefore, additional evidence is required to be allowed. He was further of the opinion that Order 41 Rule 27 not only recognises the power of the Court to call for additional evidence to enable the Court to pronounce the judgment but also for any substantial cause which may involve, when Court considers in the interest of justice that something remaining obscure should come up so that the trial Court can pronounce judgment in a more satisfactory manner.

( 4 ) IN my opinion the learned Judge has not correctly considered the ambit and scope of Courts power in permitting additional evidence in appeal under Order 41 rule 27 in the context of facts and circumstances of present case. Order 41 Rule 27 envisages three contingencies in which appellate Court can allow additional evidence to be let in by either party. The first is where the Court, from whose decree the appeal is, has refused to admit evidence which ought to have been admitted. Apparently, this contingency has not arisen in this case inasmuch as plaintiff has never tendered the evidence which could give an occasion to the trial Court to refuse admitting the same. The second contingency is where a 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 against him was passed. This contingency also obviously does not arise in the present case. Documents marked 28/1 is Hissa Form No. 4 and 28/2 is a map of the site prepared at the instance of the plaintiff. These two documents were already filed in the trial Court but were not proved. Permission was sought to produce Kanoria, the Surveyor to prove the two documents. It cannot be said, nor it is the case of the plaintiff, that the evidence which he now wants to adduce for proving these two document