Order 41, Rule 27 of the CPC cannot be used to fill up lacunae in a party's case by allowing the reception of additional evidence.

1. The first defendant is the appellant.

.2. The plaintiff has filed the suit for declaration and permanent injunction is respect of the suit property. The defendants 1 and 2 resisted the same before the trial court. The trial Court has framed as many as five issues on the pleadings and one additional issue and has held that the plaintiff has no cause of action, the first defendant has got a right in the common pathway, the first defendant has a right to let out his eaves water on the northern extreme of the five feet space running north-south and the case of the first defendant that the plaintiff is not entitled to any of these three reliefs has been proved and dismissed the suit. As against the said judgment of the trial court, the plaintiff has preferred an appeal to the Sub Court, Srivilliputhur.

3. In the Sub Court, the appellant has filed an interlocutory application in I.A. No. 143 of 1990 under Order 41, Rule 27 of the Code of Civil Procedure for reception of a sale deed, as additional evidence, under which she had purchased a portion marked as C L N O in the plaint plan, from the second respondent on 21. 1986 and it has not been produced in the trial court at the time of the trial, by mistake and over sight and it has to be received as additional evidence.

4. The learned Subordinate Judge has passed the impugned judgment remanding the suit to find out how much the sale deed filed by the appellant in I.A. No. 143 of 1990 in the Sub Court would establish the plaintiff’s case.

5. Aggrieved over the same, the first defendant has come forward with this appeal.

.6. The learned counsel appearing for the appellant would argue that the trial court after considering the oral and documentary evidence adduced by the plaintiff as well as the defendants, and also the Commissioners report and plan, has treated the suit property as a common pathway and rightly negatived the claim of the plaintiff and the appellate court without considering whether the requirement of Order 41, Rule 27 of the Code of Civil Procedure has been complied with before ordering the reception of the sale deed filed by the appellant, has remand the suit for fresh disposal to find out how much this sale deed would help the plaintiff in establishing her case and in fact, it amounts to the filling up of lacuna in the plaintiff’s case and therefore, it has to be set aside. In the judgment, the learned Subordinate Judge has made certain observations which are to be taken note of and it is as follows: "The evidence of P.W.1, and D.W.1 in their Chief examination does not support the plaintiff’s case. The evidence of P.W.2 during cross examination is to the effect that his evidence in chief examination cannot be believed. Whatever it may, be even though the plaintiff has to prove her case, when the evidence of both asides is analyzed, it is not to the effect that the plaintiff has established her case is apparently seen." At another portion, the learned Subordinate Judge has observed that since the appellant has filed the additional document in I.A. No. 143 of 1990 stating that the plaintiff’s case would be proved by the same, it is apparent that the plaintiff’s case has not been proved previously while the evidence adduced by the plaintiff already does not establish her case. In order to find out the true state of affairs, the application in I.A. No. 143 of 1990 is allowed. It must be found out how the document filed in I.A. No. 143 of 1990 establishes the plaintiff’s case and for that purpose, the matter has to be remitted." These observations by the learned subordinate judge ha d been brought to the notice of this Court by the learned counsel appearing for the appellant and he would argue that when the learned Subordinate Judge has come to the conclusion that the evidence already adduced by the plaintiff does not establish her case, the appeal should have been dismissed and in spite of that, the learned Subordinate Judge has allowed the applicat