JUDGMENT :

DR. A.K.RATH, J.

1. Aggrieved by and dissatisfied with the order dated 9.5.2001 passed by the learned Civil Judge (Sr. Division), Athagarh in Title Appeal No.6 of 1996, the petitioner has filed this petition under Article 227 of the Constitution of India. By the said order, the learned appellate court dismissed the application filed by the petitioner under Order 41 Rule 27 (1)(b) of C.P.C. to adduce additional evidence.

2. The petitioner as plaintiff filed a suit, for declaration of right, title and interest claming to be the adopted son of late Baja Pradhan, confirmation of possession in the alternative for recovery of possession and for permanent injunction against the defendants restraining them not to interfere with the peaceful possession of the suit property, in the Court of the learned Civil Judge (Jr.Division), Athagarh, which was registered as T.S.No.3 of 1994. Pursuant to issuance of summons, defendants 1 to 6, 8 and 9 filed their written statement denying the assertions made in the plaint. The said suit was dismissed. Challenging the judgment and decree passed in the suit, the petitioner filed an appeal before the learned Civil Judge (Sr.Division), Athgrah, which is registered as Title Appeal No.6 of 1996. An application under Order 41 Rule 27(1)(b) of C.P.C. was filed for acceptance of certain documents, such as, transfer certificate of the plaintiff from Kakhadi M.E. School of the year 1994, loan pass book of Mancheswar Service Co-operative Society, demand notice of Kakhadi Society for different years, voter lists for the year 1970, 1988, 1993 and 1995 and certified copies of the order sheets of the Mutation Case Nos.1, 2 and 3 of the year 1994 as additional evidence.

3. The case of the petitioner is that he had entrusted his advocate with the several documents, but those documents were misplaced and, as such, they were not produced in the trial court. During pendency of the appeal, his advocate was able to trace out the said documents. An objection to the said petition was filed by the opposite parties. The learned lower appellate court came to hold that while answering the issue no.6 the learned trial court scrutinized the records of rights and held that the mutation case was filed after institution of the suit, entries made in the primary school register were taken note of and in the school admission register, the petitioner is described as the son of Kunja Rout and not the son of late Baja Pradhan. Further, the other documents, as referred in the petition, are not required for better appreciation of the memorandum of appeal. Having held so, the learned lower appellate court rejected the petition.

4. Heard Mr.A.Mohanty, learned counsel for the petitioner. None appears for the opposite parties.

5. Order 41 Rule 27 of C.P.C. deals with production of additional evidence in the appellant court. Sub Rule 1 of Rule 27 of Order 41, which is the hub of the issue, is quoted hereunder:-

“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 documental, 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 could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

The Appellate Court may allow such evidence or document to be produced, or witness to be examined.”

6. Section 107 (1) (d) C.P.C. enables the appellate court to admit additional evidence, whereas Order 41 Rule 27 C.P.C. furnishes grounds on which additional evidenc