The admission of additional evidence in the appellate stage is not automatic and can only be allowed under specific circumstances outlined in Order 41, Rule 27 of the Code of Civil Procedure (CPC). The existence of one of these conditions is necessary for the admission of additional evidence.

Challenge in this Revision is to the Order in I.A. No.24 of 1999 in A.S. No. 26 of 1999 dismissing the Petition filed Under Or.26, Rule 9 CPC and declining to appoint Advocate-commissioner in the first Appellate Court.

2. The suit property originally belonged to the Petitioner-Appellant. He sold it to the Respondent-Society by a sale deed dated 16.07.1966. The entire extent of T.S.No.1958/B2 was sold by the Petitioner-Appellant to the Respondent - Plaintiff-Society under the said sale deed dated 16.07.1966 and is said to have handed over possession of the entire extent of property on the date of sale deed. According to the Respondent-Plaintiff Society, the said lands were divided into several house sites as per the Approved layout by the Director of Town and Country Planning in DTP No.10/1968 and Dindigul Municipality in R.O.C.No.6856/67 dated 27.04.1971 and the scheme was named as Anna Nagar. The Society has been dealing with the lands and the house sites were sold out and the purchasers have also constructed buildings.

3. It is alleged that the Petitioner-Appellant encroached portion of the suit property and put up barbed wire fencing with stone pillars. The Respondent as Plaintiff filed O.S.No.1005 of 1996 on the file of the Principal District Munsif Court, Dindigul for recovery of possession of 3 acres 49 cents in S.No.1958/B2, and for Mandatory Injunction. The Revision Petitioner-Defendant has contested the suit. In the Trial court Advocate-commissioner was appointed who has inspected the suit property and measured the property with the help of Surveyor and filed his report. The suit filed by the Plaintiff-Society was decreed declaring that the entire suit property belongs to the Society and recovery of possession was also ordered.

4. Aggrieved by the Judgment and Decree, the Petitioner-Appellant has filed A.S.No.26 of 1999. In the Appellate Court, the Revision Petitioner filed I.A. No. 24 of 1999 seeking for appointment of Advocate-commissioner. Observing that in the Trial court Advocate-commissioner was appointed who has filed the report and that there is no necessity for appointing another Commissioner by the impugned Order, the first Appellate court dismissed the Petition. The first Appellate court has further observed that the Revision petitioner-Appellant has not filed objection for the Commissioners Report before the Trial court not sought for re-appointment of the Advocate-commissioner. The Appellate Court was of the view that the petition for appointment of Advocate-commissioner has been filed belatedly in the Appellate Court.

5. Challenging the impugned Order, the learned counsel for the Revision petitioner has submitted that for substantial cause, the first Appellate Court has power to receive additional evidence. Placing reliance upon 1994-2-L.W.376 (M. Ayyaswami and another v. S.P. Ganesan and another) and (2001

10 Supreme Court Cases 619 (State of Rajesthan V. T.N. Sahani and others), the learned counsel for the Revision petitioner has submitted that application for appointment of Commissioner and whether to receive additional evidence under Or.41, Rule 27 CPC should have been decided along with the Appeal. It was further argued that had the court found appointment of Advocate-commissioner is necessary to pronounce the Judgment in the Appeal in a more satisfactory manner, it would have allowed the same and if not the same could have been dismissed at that stage and therefore, the impugned order is liable to be set aside.

6. Supporting the findings of the lower Appellate Court, the learned counsel for the Respondent-Society has submitted that the Commissioner had already visited the suit property and filed his report in the Trial court and when the Petitioner-Appellant has not sought for re-issuance of warrant before the Trial court and while so, it is not open to the Revision petitioner to seek for appointment of Advocate-commissioner before the first Appellate Court.

7. Admittedly, in the Trial Cou