A party seeking to adduce additional evidence under Order 41, Rule 27 (1) (aa), C. P. C., must show that they exercised due diligence and that the new evidence was not within their knowledge or could not be produced at the time of the decree under appeal.

P. K. MOHANTI, J.

( 1 ) THIS civil revision has been preferred by defendant No. 1 against an order rejecting his application under Order 41, Rule 27, C. P. C.

( 2 ) OPPOSITE party No. 1 as plaintiff brought Title Suit No. 59 of 1971 in the court of the Munsif, Kendrapara for a declaration of his right of way over plot no. 56 for going into and coming out of his homestead plot No. 44, for a permanent injunction restraining defendants 1 and 2 from obstructing the plaintiff's right of way and for a mandatory injunction commanding defendant no. 1 to demolish the constructions raised by him on a portion of the suit land.

( 3 ) THE stand taken by the petitioner was that he along with his co-sharers had taken lease of 0. 03 acre of land out of the suit plot from the ex-landlord in the name of defendant No. 2 Daitari Tripathy who was then karta o'f the family. After family partition in the year 1948 the said 0. 03 acre of land fell to the share of defendant No. 2 Daitari Tripathy and one Sara Dibya. Subsequently one Suma Dei, the daughter of Sara Dibya sold the share of her mother to defendant No. 6 Padmalav Tripathy who is the son o'f defendant No. 2. It was alleged that though the said 0. 03 acre of land fell to the share of defendant No. 2 and Sara Dibya the petitioner was in possession of the same and subsequently he purchased the same by a registered sale deed dated 27-9-75.

( 4 ) THE learned Munsif having decreed the plaintiff's suit, the petitioner preferred title Appeal No. 9 of 1978 which is now sub judice before the learned subordinate Judge of Kendrapara. On 12-3-1980, the petitioner filed an application in the said Title Appeal to admit as additional evidence a registered deed of partition dated 17-8-1948 and a rent receipt dated 19-1-1979 which had not been filed in the trial court. It was alleged that the deed of partition was missing somewhere and was not traceable during the trial of the suit. The application was opposed by the plaintiff-respondent.

( 5 ) THE learned Subordinate Judge rejected the application under Order 41, Rule 27, C. P. C. on 19-3-1980 holding that the rent receipt was irrelevant for the purpose of the petitioner's case and as such it could not be admitted as additional evidence. As regards the deed of partition, he held that by allowing it to be admitted in evidence, it would be nothing but filling up the lacuna of the defence. He disbelieved the petitioner's allegation that the deed of partition was missing and was not traceable during the trial of the suit. He observed that it being a registered deed of partition the petitioner could have obtained a certified copy thereof and proved the same as secondary evidence if the original deed o'f partition was not traceable.

( 6 ) IT is urged on behalf of the petitioner that the learned Subordinate Judge exercised his jurisdiction illegally and with material irregularity in rejecting the application under Order 41, Rule 27, C. P. C. before hearing of the appeal on merits. It is argued that the requirement of additional evidence must be of the appellate court itself and the legitimate occasion for the exercise of the power under Order 41. Rule 27, C. P. C. is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent and the appellate court is unable to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.

( 7 ) ORDER 41, Rule 27. C. P. C. reads as follows:

"27. Production of additional evidence in Appellate Court: (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or coul