Failure to consider additional evidence produced by a party can result in a serious miscarriage of justice and may lead to the setting aside of the judgment and remittance of the matter for further proceedings.

1. Challenge in this second appeal is made to the judgment and decree dated 09.10.2000, passed in A.S.No.53 of 1999, on the file of the Subordinate Court, Dharapuram, confirming the judgment and decree dated 28.10.1999, passed in O.S.No.306 of 1998, on the file of the District Munsif Court, Kangeyam.

2. The parties are referred to as per their rankings in the trial Court.

3. Suit for declaration and permanent injunction.

4. The plaintiffs have laid the suit against the defendants for declaration that they have got the right of pathway marked as ABCD to the extent of 8 feet breadth and 1000 feet length north south in survey nos. 251, 252, 252B(2), 252B(3), 252(C) & 257 and permanent injunction restraining the defendants from restricting them from taking water from the well in survey no. 264C through the channel pipeline underneath the earth of the above said pathway and use the same as a cart track and pathway.

5. The defendants have filed the written statement contesting the case of the plaintiffs in all aspects and urged that the plaintiffs are not entitled to the reliefs claimed in the suit.

6. In support of the plaintiffs' case PWs 1 and 2 were examined, Exs.A1 to A13 were marked and on the side of the defendants, DWs 1 and 2 were examined, Exs. B1 to B16 were marked and Exs.C1 and C4 were also marked.

7. The trial Court, on the appreciation of the materials placed, both oral and documentary evidence and the submissions made, was pleased to dismiss the suit laid by the plaintiffs. The first appeal preferred by the plaintiffs was also dismissed confirming the judgment and decree of the trial Court. Aggrieved over the same, the present second appeal has come to be preferred.

8. At the time of the admission of the second appeal, the following substantial questions of law were formulated for consideration:

1. Whether having allowed I.A.No.3/2000 filed by the plaintiffs and allowing 15 documents as additional evidence, the judgment of the lower appellate Court is vitiated by failure to consider these documents?

2. Whether the lower appellate Court has failed to consider that the trial Court has dismissed the plaintiffs' suit for not filing the documents filed as additional documents in the first appellate Court.

9. Inasmuch as I intend to dispose of the second appeal, on the substantial questions of law formulated as above referred to, I deem it unnecessary to dwell or expatiate about the facts of the parties in detail and also I deem it not fit, in the interest of justice, to discuss about the merits of the case of the respective parties, as the determination of the substantial questions of law formulated in the matter, as such, do not require the discussion of the merits of the case, at this stage of the matter, as any discussion or the determination of the merits of the case, at this stage of the matter, in my considered opinion would affect the case of the either parties, as I intend to remit the matter back to the first appellate Court for the consideration of the matter afresh for the reasons below stated.

10. On a perusal of the materials placed, it is seen that pending appeal, the plaintiffs had preferred an application before the first appellate Court in I.A. 3/2000 under Order 41 Rule 27, Order 13 Rule 2 and Section 15 of the code of Civil Procedure for the reception of the additional documents, in support of their case and in the said petition, according to the plaintiffs, as the trial Court had negatived their suit, on the footing that they had not produced necessary documents to sustain and prove their case and as the documents necessary and essential for establishing their case had been obtained by the plaintiffs from the Court, on the withdrawal of the earlier suit laid by them against the defendants in O.S. 94/88, on the file of the District Munsif Court, Kangeyam and after getting instructions of their erstwhile counsel, as they had obtained the records relevant to sustain their case and accordingly, it is putfor