1. Challenge in this second appeal is made to the judgment and Decree dated 30.11.2000 made in A.S.No.83 of 2000 on the file of the Principal District Court, Tiruvannamalai reversing the Judgment and decree dated 31.01.2000 made in O.S.No.305 of 1987 on the file of the District Munsif Court, Polur.

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

3. Suit has been laid by the plaintiff for declaration and permanent injunction.

4. One of the substantial questions of law formulated at the time of admission of the second appeal is

“Whether the lower appellate Court is right in relying upon Exs.B6 to B10, which had not been proved and established?”

5. Considering the points raised, during the course of arguments, in the second appeal, in my considered opinion, it is unnecessary to deal with the facts of the case in detail as for the reasons below mentioned, it is proposed to remit the matter back to the first appellate Court and in such view of the position, any finding or determination by this Court on the points in issue raised in the suit one way or the other either incidentally or directly during the course of the this appeal would seriously prejudice the case of either parties and in such view of the matter, without going into merits of the case one way or the other, on a legal point, the second appeal is intended to be disposed of.

6. It is found that the plaintiff had succeeded in the trial Court. Aggrieved over the same, the defendants have preferred the first appeal. It is further seen that during the pendency of the first appeal, the defendants have preferred an application in I.A.No.132/2000 under Order 41 Rule 27 CPC for the reception of the additional evidence in support of their case contending that the additional evidence projected would establish their defence version and as they were unable to produce the same before the trial Court, they had been necessitated to file the same during the course of appeal and hence, the petition.

7. It is seen that the plaintiff has not filed any counter in the said application as seen from the notings of the first appellant Court in the said petition and accordingly, the first appellate Court has proceeded to allow the application above stated on 28.11.2000 and it is thus found that prior to the disposal of the first appeal on 30.11.2000, I.A.No.132 of 2000 has come to be allowed by the first appellate Court on 28.11.2000 itself based on the fact that no counter has been filed by the plaintiff. It is further seen that the first appellate Court has also proceeded to mark the additional evidence viz., Exs.B6 to 10 in support of the defendants' case and it is seen that the appellate Court has received the documents and exhibited the same as Exs.B6 to B10 by consent and accordingly, it has entertained the petition on 28.11.2000. However, as vehemently contended by the plaintiff's counsel, even assuming that the plaintiff has not filed any counter in the application for the reception of additional evidence, still, it is argued by him that despite the said position, the appellate Court should have given reasons that the additional evidence projected are necessary for enabling him to pronounce judgment in the first appeal or for any other substantial cause and also the first appellate Court should have also determined as to whether the defendants had been precluded from producing the additional evidence during the course of trial, despite their due diligence. However, as regards the above points required to be determined by the first appellate Court at the time of reception of the additional evidence as mandated under Order 41 Rule 27 CPC, it is seen that the same is not adhered to and on the other hand, proceeded to entertain the above said application on the footing that no counter has been filed by the plaintiff. Be that as it may, even if no counter has been filed, it is incumbent and necessary on the part of the first appellate Court to give reasons for accepti