The main legal point established in the judgment is that the Appellate Court must follow the proper procedure for recording additional evidence and should not allow the application for additional evidence in a manner that causes prejudice to any party.

P.R. Shivakumar, J.

1. After the second appeal came to be disposed of by a judgment dated 08.04.2015, the legal heirs of the respondent/defendant in the second appeal filed Review Application (MD) No. 171 of 2015 on the ground that the first respondent herein i.e. Ganapathi passed away even prior to the date of hearing of the second appeal and it was not brought to the notice of the Court, since the counsel herself was not aware of the said fact. As such a technical plea was taken in the review application, the appellant did not raise objection for reviewing the judgment on the above said ground. Accordingly, the review application was allowed by order dated 21.12.2015 and the second appeal stands listed today for hearing.

2. Today, Mr. N. Balakrishnan, learned counsel for the appellant and Mrs. N. Krishnaveni, learned counsel for the respondents are present. After perusing the judgments of the Courts below and the records produced in the form of typed set of papers, the following substantial questions of law are formulated on the basis of which the arguments are to be heard:

(i) Whether the lower Appellate Court has committed an error in not following the procedure contemplated under Order 28 of Rule 41 of the Code of Civil Procedure, 1908 for recording the addition all evidence and by simply marking the addition all documents produced by the deceased first respondent herein/defendant and reading them in to evidence?

(ii) Whether the lower Appellate Court is not wrong in law in allowing the application in I.A. No. 334 of 2012 in A.S. No. 122 of 2011 without considering the scope of Rule 27(1)(aa) and with out relying on sub-rule (b)?

3. After hearing Mr. N. Balakrishnan, learned counsel appearing for the appellant and Mrs. N. Krishnaveni, learned counsel appearing for the respondents and upon perusing the copies of the judgments of the Courts below and the connected records produced in the form of typed set of papers, this Court pronounces the following judgment.

4. The plaintiff in the Original Suit in O.S. No. 399 of 2006 on the file of the Court of District Munsif, Pudukkottai, who emerged successful, suffered a set back before the Appellate Court, namely the Sub Court, Pudukkottai in Appeal Suit No. 52 of 2008, as the learned Subordinate Judge, Pudukkottai, chose to set aside the decree granted by the trial Court on 30.01.2008 and remitted the matter back to the trial Court for fresh disposal, after giving an opportunity to the deceased first respondent herein/defendant to lead further evidence in the form of a document, the non-production of which had led the trial Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872. Even after such remand, the deceased first respondent herein/defendant did not produce the said document and once again suffered a decree in the hands of the trial Court, which was passed on 31.03.2011. Once again, the deceased first respondent herein/defendant approached the lower Appellate Court by preferring an appeal in Appeal Suit No. 122 of 2011. This time during the pendency of the appeal, the deceased first respondent herein/defendant preferred an Interlocutory Application in I.A. No. 334 of 2012 in Appeal Suit No. 122 of 2011 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 seeking permission to adduce additional documentary evidence.

5. The learned lower Appellate Judge, who adopted the procedure on the expected lines by hearing the application along with the appeal on merits, deviated from the path by not following the procedure for recording additional evidence as contemplated under Rule 28 of Order 41 of the Code of Civil Procedure, 1908. The result/consequence is the reversal of the Judgment of the trial Court and dismissal of the suit filed by the appellant herein/plaintiff.

6. When the Appellate Court arrives at a conclusion that a party is to be permitted to adduce additional evidence, then automatically Rule 28 under Order 41 of the Code of