The central legal point established in the judgment is the correct procedure to be followed when allowing the production of additional evidence during the pendency of an appeal, as per the provisions of Order 41 Rule 28 CPC.

V.M. Jain, J. - This second appeal from order has been filed by the plaintiff, against the order dated 21.2.2002, passed by the learned Additional District Judge, vide which the application for additional evidence filed by the defendants was allowed, the judgment and decree passed by the learned trial Court were set aside and the trial Court was directed to record the additional evidence of the defendants and also to give opportunity to the plaintiff to produce evidence in rebuttal. The trial Court was further directed to decide the suit afresh after considering the entire evidence on record.

2. The plaintiff had filed a suit for declaration and mandatory injunction, with regard to the amount of provident fund lying in his account. After hearing both sides, the learned trial Court, vide judgment and decree dated 22.4.1999, decreed the suit of the plaintiff and it was held that plaintiff was entitled to the entire amount of provident fund lying in his account and the defendants were directed to release the entire amount of provident fund to the plaintiff. Aggrieved against the said judgment and decree of the trial Court, the defendants filed appeal before the learned District Judge. During the pendency of the appeal, defendant No. 3 filed an application under Order 41 Rule 27 CPC before the Appellate Court for permission to produce certain evidence by way of additional evidence. The said application was contested by the plaintiff. After hearing both sides, the learned Additional District Judge allowed the said application of defendant No. 3. Resultantly, the judgment and decree of the trial Court were set aside and the trial Court was directed to record the additional evidence of defendant No. 3 and also to record the evidence in rebuttal that may be produced by the plaintiff and thereafter to decide the suit afresh after considering the entire evidence. Aggrieved against the order dated 21.2.2002 of the learned Additional District Judge, the plaintiff has filed the present second appeal from order in this Court.

3. Notice of motion was issued and further proceedings before the trial Court were stayed.

4. I have heard the learned counsel for the parties and have gone through the record carefully.

5. It has been submitted before me by the learned counsel for the plaintiff- appellant that even if the learned Additional District Judge was to allow the application of defendant No. 3 for producing additional evidence, yet no case was made out for setting aside the judgment and decree of the learned trial Court and for remanding the case to the trial Court for decision afresh after recording the additional evidence and the evidence in rebuttal that may be produced by the plaintiff. It has further been submitted that having allowed the application of defendant No. 3 for producing additional evidence, under Order 41 Rule 28 CPC, the Appellate Court could neither take the additional evidence itself or could direct the trial Court to take such evidence and to send the same to the Appellate Court. It was submitted that the provisions of Order 41 Rule 28 are similar to the provisions of Order 41 Rule 25 CPC, wherein after framing the additional issues etc., the Appellate Court is entitled to refer the same for trial, to the trial Court and to direct the trial Court to take additional evidence and thereafter the trial Court is to return the evidence to the Appellate Court together with its findings thereon.

6. After hearing the learned counsel for the parties and after perusing the record, in my opinion, the order dated 21.2.2002, passed by the learned Additional District Judge, is liable to be set aside. Once the learned Additional District Judge had allowed the application of defendant No. 3 for producing additional evidence, during the pendency of the appeal, the learned Additional District Judge was required to follow the procedure laid down under Order 41 Rule 28 CPC, instead of setting aside the judgment and decree of the tria