The discretion to admit additional evidence is not arbitrary but judicial, and the decision on admitting additional evidence cannot be challenged in second appeal unless arbitrary.

The short question that arises in this second appeal is whether an order passed by the Appellate Court under R.27 of 0.41 rejecting the reception of additional evidence can be challenged in second appeal under S.100 of the Code of Civil Procedure.

2. Appellants are the plaintiffs in O.S.32/81 before Sub Court, Parur. The suit is for specific performance of an agreement alleged to have been entered into between the defendant-respondent and the husband of first appellant and father of appellants 2 to 4 by name Sathyan. By that agreement defendant had agreed to sell the properties described in the plaint. But the document could not be executed since defendant was in an advanced stage of pregnancy at that time. Demands were made subsequently. But defendant refused to execute the assignment and that necessitated the suit. Defendant denied the execution of the agreement and disputed the signature contained in the agreement as hers. Witnesses were examined on both sides and documents were also produced. The trial court after a consideration of the documents and evidence dismissed the suit holding that the evidence is not sufficient to establish the genuineness of the agreement. An appeal was preferred against that decision. During the pendency of the appeal appellants moved an application as I.A.374/86 for getting the opinion of an expert after comparing the disputed signature of the defendant with her admitted signatures. The lower Appellate Court dismissed that petition. After hearing both sides the appeal was dismissed. Hence the second appeal.

3. The following three substantial questions of law are seen formulated in the appeal memorandum. The appeal was admitted on those questions of law.

L Whether the lower appellate court is right in disallowing the additional evidence sought to be adduced as per the provisions of O.XLI R.27 of the C.P.C. 1908?

ii. The lower appellate court has observed that there is no conclusive evidence regarding the comparison of the signature in Ext. Al agreement with other admitted signatures. This lacuna which remaining obscure can be filled up only by adducing expert evidence so as to pronounce the judgment in a just and more satisfactory manner. Whether these aspects are "substantial causes" under 0.41 R.27 of the Code of Civil Procedure, 1908?

iii. Whether the lower appellate court required additional evidence to be recorded as per 0.41 R.27(b) of the C.P.C., 1908 to enable it to pronounce judgment?

4. Heard counsel on both sides.

5. The order of the lower appellate court rejecting the request for obtaining additional evidence is not an appealable order. But that order can be questioned in an appeal from the appellate decree. The question arises whether this Court in second appeal should interfere with the discretion exercised by the lower appellate court in rejecting the application.

6. Before adverting to that question the scope and ambit of R.27 of 0.41 has to be understood. That rule reads:

"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 evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

7. In order to