Thomas P. Joseph, J.

The following substantial questions of law are framed for a decision:

(1) Whether on the facts and in the circumstances of the case the lower Appellate Court is correct in law in exercising jurisdiction and discretion under O.XLI R. 27(1)(b) of the Code of Civil Procedure, 1908 (for short, "the Code") in allowing LA. Nos. 250 and 251 of 2013?

(2) Is the lack of advice by the counsel to cause production of original of a disputed document, a contention that is not proved by any acceptable evidence, a ground enabling production of additional evidence at the appellate stage?

(3) Whether the order of remand granted by the lower Appellate Court is sustainable under O. XLI R. 23 or 23A of the Code?

(4) Whether remand of the case is sustainable in law?

2. The appeal arises from the judgment dated 27.2.2013 in A.S. No. 30 of 2012 of the Additional District Court, Ottapalam setting aside dismissal of O.S. No. 100 of 2008 of the Munsiffs Magistrate's Court, Pattambi and remitting that case for fresh decision.

3. The appellant/plaintiff sued the respondents/defendants for partition and separate possession of the ?rd share she claimed in the suit property. According to her, the suit property belonged to the late Narayanan whose children are the appellant and the respondents. Preceding institution of the suit the appellant issued a notice demanding partition. That was replied by the first respondent claiming that the late Narayanan had executed a settlement deed concerning the suit property in his favour on 28.8.2003.

4. In view of the said contention of the first respondent in the reply notice the appellant alleged in the plaint that the late Narayanan was paralytic for about 3 years prior to his death on 29.9.2004 and could not execute any such settlement deed. She denied execution of the settlement deed.

5. The first respondent resisted the suit relying on the settlement deed dated 28.8.2003.

6. One of the issues learned Munsiff-Magistrate raised was whether the first respondent has acquired title over the suit property as per settlement deed dated 28.8.2003. The appellant gave evidence as PW1 and examined PWs 2 to 4. PW4 is a Medical Officer examined to prove alleged illness of the late Narayanan. The first respondent did not adduce oral evidence but proved Exts. B1 to B9. Ext. B6 is the certified copy of the settlement deed. Marking of that document was objected but the Trial Court overruled that objection and marked in it in evidence. Trial Court held that original of Ext. B6 is not produced by the first respondent and dismissed the suit.

7. In the appeal at the instance of the first respondent he filed two applications-I.A. Nos. 250 and 251 of 2013. The first one was to receive I.A. No. 251 of 2013 and list of documents and witness schedule and the latter, to direct the Manager of the Federal Bank to produce original of Ext. B6. Though those applications were opposed by the appellant, the lower Appellate Court allowed the same and remitted the case to the Trial Court for fresh decision. Hence this appeal.

8. The learned counsel for the appellant has contended that the lower Appellate Court was not correct in allowing I.A. Nos. 250 and 251 of 2013. It is argued that summoning documents as requested for in I.A. No. 251 of 2013 amounts to receiving additional evidence under R. 27 of O. 41 of the Code of Civil Procedure (for short, "the Code"). The learned counsel argues that receiving additional evidence in appeal is circumscribed by the limitation prescribed under Clauses (aa) and (b) of R. 27 of O.41 of the Code which do not exist in this case. This is not a case where the Court required additional evidence to render judgment in the case. The first respondent was in possession of the relevant documents and was aware of the contention being raised by the appellant but in spite of that, on a plea that the burden of disapproving the settlement deed is on the appellant refused to produce the original document in the Tri