The discretion to receive and admit additional evidence should be exercised judiciously and within the limitations specified in the relevant provisions.

V.K. Agrawal, J.—This Misc. Appeal is directed against the judgment dated 7-7-2000, in Civil Appeal No. 49-A/99, by Fourth Additional District Judge, Rewa, setting aside the judgment and decree dated 25-1-1996, in Civil Suit No. 105-A/1994 and remanding the case for retrial.

2. The original Plaintiff Hirdaylal filed a suit for declaration of his share in the suit property, and for partition and possession thereof. Since Hirdaylal died during the pendency of the suit, Appellants were substituted in his place, as his legal representatives. The case of the Plaintiff was that the suit property was joint Hindu Family Property. Since differences arose between original Plaintiff Hirdaylal and Defendants No. 1 and 2, the Plaintiff requested for partition. However, Defendants No. 1 and 2 did not partition the suit property. Hence, suit for partition and possession was Filed. The suit was resisted only by Defendants/respondents 1 and 2. Remaining Defendants/respondents remained absent and therefore, were proceeded against ex-parte by the trial Court.

3. The learned trial Court decreed the suit and declared that the Plaintiffs had one third share in the suit property and that the Defendants No. 1 and 2 had also one third share each. The Defendants/respondents No. 1 and 2 preferred an appeal before the lower Appellate Court against the said judgment and decree of the trial Court. The Defendants No. 1 and 2 Appellants in the lower Appellate Court, filed an application marked by the lower Appellate Court as I.A. No. 2, under Order 6, Rule 17 read with Section 151, Code of Civil Procedure, for amendment in the written statement. They filed another application marked by the lower Appellate Court, as I.A. No. 3 under Order 41, Rule 27 of Code of Civil Procedure, for production of additional evidence and also an application marked as I.A. No. 4 u/s 35 of the Stamp Act praying that stamp duty and penalty be permitted to be paid on the agreement dated 22-1-66.

4. The learned lower Appellate Court by the impugned judgment allowed the said applications and remanded the case for retrial to the trial Court.

5. Learned Counsel for Plaintiffs/appellants submitted that the learned lower Appellate Court has proceeded to decide the appeal in a casual manner without considering its merit and without adhering to the settled principles of law. It has been submitted that the lower Appellate Court considered and allowed application under Order 41, Rule 27 of Code of Civil Procedure, as well as applications under Order 6, Rule 17, CPC and Section 35 of the Stamp Act, without considering the same in proper perspective and without considering the case on merits. It was therefore urged that the impugned judgment remanding the suit for retrial is not proper and cannot be sustained.

6. It is noticed that the learned lower Appellate Court in para 11 of the impugned judgment framed four questions for consideration in the appeal, which are as below:

(i) Whether the Appellant's application (I.A. No. 2) for amendment is liable to be allowed?

(ii) Whether the Appellant's application (I.A. No. 3) for production of documents as additional evidence is liable to be allowed?

(iii) Whether the Appellant's application (I.A. No. 4) for permission to pay stamp duty and penalty is liable to be allowed? and

(iv) Whether the trial Court's judgment and decree is against the law and procedure, and therefore liable to be set-aside?

7. The learned lower Appellate Court in para 12 of the impugned judgment observed that application (I.A. No. 2) for amendment deserves to be allowed. Similarly in para 13 of the impugned judgment, the lower Appellate Court observed that the application (I.A. No. 3) for production of documents as additional evidence was liable to be allowed, as the said documents do not appear to be forged one and as they are necessary for the final decision of the case. It is noticed that the lower Appellate Court did not assign specific reasons as to why the said documents were n