The appellate court cannot admit additional evidence without recording reasons for its admission, and the circumstances of the case must fall within one of the three clauses of Order 41, Rule 27(1) C. P. C., which allow for the admission of additional evidence.

J. K. MISRA, J.

( 1 ) THE plaintiff in the suit is the petitioner here. Defendants 1 and 6 are two brothers. The plaintiff-petitioner purchased the western half of the suit plots from defendant No. 6 on 10-8-51. Prior to that, defendants 2 to 5 had purchased the whole of the suit plots from defendant No. 1 purporting to have made the sale as the Karta of the family of defendants 1 and 6, on 10-4-51. Defendants 7 and 8 are the lessees of the plaintiff. The plaintiffs suit was one for recovery of possession, or in the alternative for partition. One of the main issues was whether there had been partition between defendants 1 and 6 prior to the two sales--The trial court passed a decree for recovery of possession in favour of the plaintiff, holding that there had been mutual partition between defendants 1 and 6, or their family properties. The two appeals were filed against this decree--one by defendant No. 1 and the other by defendants 2 to 5, and both the appeals were heard analogously. Defendant No. 1 as an appellant, filed a certified copy of the deposition of defendant No. 6 in a previous small cause suit No. 56 of 1952 in the Court of the munsif, Aska, and prayed the appellate court to treat that as additional evidence. The said small cause suit was one, in which defendant No. 6 was the plaintiff, a debtor was the main defendants and defendant No. 1 was a proforma defendant. In that suit in course of the cross-examination, defendant No. 6 had stated in the year 1952, "our lands have not been partitioned as yet. " It is this statement which was sought to be put in as additional evidence in the appellate Court. Without hearing the appeals on their own merits, the appellate Court recorded the following order on the said additional evidence sought to be adduced and remanded the case for retrial, and against the said order of remand and receipt of additional evidence, the present petition in revision has been moved.

( 2 ) THE relevant portion of the appellate order is as follows:

"this piece of evidence which is material for the determination of the case was not produced before the trial court and the learned Advocate for the appellant has prayed that this document may be taken as an additional evidence. I find no reason to reject his prayer and the document is accepted as an additional evidence. Both the lawyers for the appellant and respondents have conceded that the case may be remanded to the trial court for considering the additional evidence and giving a finding about the petition (partition ?) between two brothers ananda and Adikanda Upadhya. The judgment and decree of the learned trial court are set aside and the suit is remanded for retrial. The suit will be readmitted in its original number in the register and the evidence recorded 'in the original trial shall subject to all exception, be evidence during the trial after remand. The parties are at liberty to adduce evidence about the partition. As all the issues are inter-connected with the facts of partition all the issues will be decided again. "

( 3 ) ORDER 41, Rule 27, C. P, C. deals with the question of taking additional evidence at the appellate stage. Sub-section (2) of the said rule provides, "wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission. " The learned appellate Court, without recording any reason in the present case as to why additional evidence was allowed to be produced, only said that he found no reason to reject the prayer for the same. This was clearly against the provision of the rule. However, it has been held in several cases including Iswar Chandra v. Jogendra Lal, AIR 4927 Cal 126 and biradhmal v. Prabhabati Kunwar, AIR 1939 PC 152 that the omission to state the reason does not amount to an illegality, but it is material irregularity. Since the appellate Court has recorded no reasons, one has to seek the reasons from the petition filed by defendant No. 1 as appellant,