Hon’ble Dr. Devendra Kumar Arora, J.—Heard learned Counsel for the petitioner and peruse the record of the writ petition.

2. This writ petition under Article 227 of the Constitution arises out of the order dated 15.9.2016 passed by Special Judge, E.C. Act in Civil Appeal No. 83 of 2009; Sant Bux v. Bindeshwari, whereby the application moved by the petitioners under Order XLI, Rule 27 of the Code of Civil Procedure for receiving additional evidence in the appeal has been rejected.

3. A perusal of the record reveals that petitioners’ father, namely, Sant Bux had preferred a suit for permanent injunction against the opposite party No. 2 in the Court of Munsif (Hawali), Lucknow bearing Regular Suit No. 253 of 1988. Opposite Party No.2/Smt. Bindeshwari, wife of Ram Khelawan also filed a suit for possession against Sant Bux, which was registered as Regular Suit No. 294 of 1997. Both the suits were clubbed together and decided by II Additional Civil Judge (Junior Division), Lucknow, by the judgment and order dated 26.3.2009 whereby the suit filed by the father of the petitioners was dismissed and the suit filed by opposite party No. 2 was decreed. Aggrieved by the judgment and order dated 26.3.2009, petitioners’ father filed two Civil Appeals in the Court of District Judge bearing number Civil Appeal No. 82 of 2009 against the judgment and decree passed in R.S. No. 294 of 1997 and other as Civil Appeal No. 832 of 2009 against the judgment and decree passed in R.S. No. 253 of 1988.

4. In the aforesaid appeal, petitioners moved an application on 9.7.2015 under Order XXXXI Rule 27 of the Code of Civil Procedure for receiving additional evidence with a view to adduce oral evidence in the appeals and to produce at least a marginal witness of the Will dated 28.4.1985.

5. As a general rule, the Appellate Court should not admit additional evidence for the purpose of the disposal of an appeal, and the parties are not entitled to produce additional evidence, whether oral or documentary in the appellate Court. The Code, however under this rule empowers an appellate Court to take additional evidence subject to certain conditions. The power is discretionary and must be exercised on sound judicial principles and in the interest of justice. Additional evidence does not mean evidence over and above the evidence led by the party in the lower Court. The basic principles for the admission of the additional evidence are;

(i) The party seeking the admission of additional evidence should be able to establish that such additional evidence could not have been adduced at the first instance with the best efforts;

(ii) The party affected by the admission of additional evidence should have an opportunity to rebut it;

(iii) The additional evidence must be relevant for the determination of the issue.

6. For entertaining an application for the production of additional evidence in an appeal, any one or more of the conditions as enumerated in Rule 27 of the Code have to be fulfilled. Under the scheme of Code, whether oral or documentary, it is the trial Court before whom parties are required to adduce their evidence. But in three exceptional circumstances, additional evidence can be adduced before the appellate Court, as provided under S. 107(1)(d) read with Rule 27 of the Code of Civil Procedure. Order XLI, Rule 27 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 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 Appella