The appellate court's discretion to admit additional evidence is not arbitrary but is circumscribed by the limitations prescribed in O.41 R.27(aa) of the Civil Procedure Code.

LAHIRI, J.:- The appeal and the connected Civil Revision are directed against the judgment and order dt. 6-9-1982 passed by the Assistant District Judge No. 1, Nowgong, Assam in Title Appeal No. 19 of 1978. By the impugned order the learned Judge-(I) permitted the appellants-defendants to produce additional evidence; (2) remanded the suit to the Court of the first instance for recording the evidence with a direction to dispose of the suit on the basis of the additional evidence, and (3) set aside the judgment and decree obtained by the plaintiff. In short, the learned judge allowed the defendants to produce additional evidence purporting to act under O.41, R.27(aa) of the Civil P. C, the Code for short. However, instead of recording the additional evidence himself learned Judge directed the Court of the first instance to take such evidence, and did not act u/o. 41, R.28 of the Code, without assigning any reason whatsoever. Learned Judge has set aside the hard earned judgment and decree obtained by the plaintiff and remained the suit purporting to act u/o. 41 R.23A of "the Code."

2. It is said that in determining Nations rank in political civilisation no other test is more decisive than the degree in which justice as defined by law is actually realised in its judicial administration. A trusted and vigilant judiciary can inject inspiration and vibrate vitality in our socio-economic life. It is the pressing need for the Judicial Officer to enthuse confidence in the legal institutions and in their functioning. To a common man shaken, repressed and rocked by various turmoils the only saviour appears to him "an impartial judiciary". As a member of the judiciary must be a trusted person, he must be impartial and independent. Indians clinch implicit faith in an impartial and independent judiciary. A member of the judiciary must always remind himself that he can only serve and this privilege has been given to him when others have it not. Judicial duties must be performed only as worship, without fear or favour, ill-will or affection. Justice should not only be done but must be shown to have been done.

3. Foreigners illegally staying in India should be deported lock, stock and barrel. There can be no second opinion. However, no Indian should be thrown out of India. It is easy to give a dog bad name and hang him. When the question of determination of citizenship comes up before the Court, it should well remember the far-reaching consequences of such a decision. A wrong decision can land an Indian in deep sea. Similarly, a wrong decision makes a foreigner a citizen. Both are fraught with danger. So nothing should be done in a hot haste. Before setting aside a lawfully obtained decree and remanding a suit for "fresh trial" it is pertinent and essential for a responsible judge to consider whether it is avoidable. Undoubtedly learned Judge has disposed of the appeal and earned the credit of disposal of a title appeal. But should a judge overlook the plight of a poor peasant who fought litigation and obtained the decree after about three years? There is no presumption that a member of a particular religion or group is a foreigner.

4. The plaintiff filed the suit for declaration that he is an Indian citizen and for a permanent injunction restraining the defendants, the Union of India, the State of Assam and the Supdt. of Police Nowgong restraining them from deporting him from India and obtained the reliefs. He filed the suit on 27-2-1976 and obtained the decree on 31-7-1978. Before instituting the suit he had served notices under S.80 of "the Code" on the Union of India and the State of Assam which were duly received by the defendants. The plaintiff instituted the suit and reiterated his assertions made in the notices. The plaintiff claims that he was born and brought up at Kapilipar village under Lanka P. S. District-Nowgong, Assam, and he is an Indian citizen by birth. He described his name and his fathers name in the notices as well a