Wednesday, 13 January 2021

Judgments on production of additional evidence in appellate court

 Code of Civil Procedure

107. Powers of Appellate Court.

O41 R 27. Production of additional evidence in Appellate Court.

Judgments

(a) In Arjan Singh V. Kartar Singh & Ors., AIR 1951 SC 193, the Apex Court held that the said provisions are applicable when some inherent lacuna or defect becomes apparent while examining the case and are not applicable where a discovery is made outside the Court of fresh evidence and application is made to import it. The true test to allow the application is as to whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced. While deciding the said case, the Supreme Court placed reliance upon two judgments of the Privy Council in Kessowji V. G.P.P. Railway, 1934 Ind. App. 115; and Parsotim Thakur & Ors. V. Lal Mohar Thakur & Ors., AIR 1931 PC

Further in Arjan Singh case (Supra) “………If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent……. The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment”

 

(b) In State of U.P. V. Manbodhan Lal Srivastava, AIR 1957 SC 912, the Constitution Bench of the Supreme Court held that “additional evidence” should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at proper stage and to fill in gaps. Of course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice. The Court held that additional evidence should not be permitted to be adduced when there was sufficient opportunity for the party to place the same before the court below.

(c) In Sunder Lal & Son V. Bharat Handicrafts Private Ltd., AIR 1968 SC 406, while dealing with a similar issue, the Supreme Court observed as under:- “Where the Appellate Court requires any document to be produced or witnesses to be examined to enable it to pronounce judgment, or for any other substantial cause, the Court may allow such document to be produced or witnesses to be examined. We do not require additional evidence to be produced in this case to enable us to pronounce judgment, nor do we think that any substantial cause is made out which would justify an order allowing additional evidence to be led at this stage. The document relied upon was admittedly in the possession of the appellants, but they did not rely upon it before the High Court. It was said at the Bar that the importance of the document was not realized by those in charge of the case. We do not think that the plea would bring the case within the expression “other substantial cause” in O. 41, R. 27 of the Code of Civil Procedure.”

(d) In Premier Automobiles Ltd., Bombay V. Kabirunisha & Ors., AIR 1991 SC 91, the Apex Court held that in case the applicant party satisfies the Court regarding the importance of additional evidence it wants to adduce and explain the circumstances, which prevented it from producing before the trial stage, the application may be allowed.

(e) In Billa Jagan Mohan Reddy & Anr. V. Billa Sanjeeva Reddy & Ors., (1994) 4 SCC 659, the Supreme Court held that if the documents are found to be relevant to decide the issue in controversy, and feels that interest of justice requires that the documents be received, as additional evidence, the appellate court may receive the documents and consider their effect.

(f) In Jayaramdas & Sons V. Mirza Rafatullah Baig & Ors., AIR 2004 SC 3685, the Court held that it would be better if such grounds are specifically set out in the application so that opposite party may better make the plea and Court may also have the relevant provisions of the specific clause of Rule 27 (1) in its mind while dealing with the application. However, in case the ends of justice demand documents if being material bearing on the crucial issue, arisen for decision between the parties, be allowed.

(g) In Soonda Ram & Anr. V. Rameshwarlal & Anr., AIR 1975 SC 479, the Supreme Court considered the case under the said provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 and held that if the issue can be decided on the basis of the evidence on record and there was no defect in the pleadings of such a nature that would enable the Court to obliterate and ignore the evidence adduced on the points involved, the application under O. 41 R. 27 should not be allowed.

(h) In Syed Abdul Khader V. Rami Reddy & Ors., AIR 1979 SC 553, the Supreme Court considered its large number of earlier judgments and held that the provisions of O.41 R. 27 of the Code do not confer a right on the party to adduce additional evidence, but if the Court hearing the action requires any document so as to enable it to pronounce judgment, it has the jurisdiction to permit additional evidence to be adduced and in case the appellate court has given cogent reasons on such application and order has been passed in the interest of justice, it does not require any interference.

(i) In Smt. Pramod Kumari Bhatia V. Om Prakash Bhatia & Ors., AIR 1980 SC 446, the Supreme Court held that there can be no justification to entertain the application under O. 41 R. 27 at a belated stage and it deserves to be rejected on this count alone.

(j) In M.M. Quasim V. Manohar Lal Sharma, AIR 1981 SC 1113, the Supreme Court held that the said provisions are meant for adducing additional evidence “inviting the Court’s attention to a subsequent event of wide importance cutting at the root of the plaintiff’s right to continue the action.”

(k) In Shivajirao Nilangekar Patil V. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294, the Apex Court held that if the application unnecessarily prolongs the disposal of the case and not directly connected with the immediate issue, it deserves rejection. Party filing such an application has to establish with his best efforts that such additional evidence could not have been adduced at the first instance; secondly, the party affected by the admission of additional evidence, should have an opportunity to rebut such evidence; and thirdly, the additional evidence was relevant for determination of the issue.

(l) In N. Kamalam (Dead) & Anr. V. Ayyasamy & Anr., (2001) 7 SCC 503, the Supreme Court held as under:- “Needless to record that the Court shall have to be conscious and must always act with great circumspection in dealing with the claims for letting in additional evidence, particularly in the form of oral evidence at the appellate stage and that too, after a long lapse of time. In our view, a plain reading of O. 41 R. 27 would depict that rejection of the claim for production of additional evidence after a period of ten years from the date of filing of the appeal, as noticed above, cannot be permitted to be erroneous or an illegal exercise of discretion. The three limbs of Rule 27 do not stand attracted.”

(m) In Vasantha Viswanathan & Ors. V. V.K. Elayalwar & Ors., (2001) 8 SCC 133, the Supreme Court observed that while considering an application for additional evidence, the Court should keep in mind that the said evidence was not put to the other side while he was deposing as a witness in the Suit. Therefore, the application under the said provisions should not be accepted in a routine manner.

(n) In P. Purushottam Reddy V. Pratap Steel Ltd., AIR 2002 SC 771, the Apex Court examined a case, wherein the High Court had remanded the case to the trial Court to take additional evidence and decide the case afresh. The Court came to the conclusion that such a view was not permissible in the fact situation of that case; thus, the order of remand was set-aside observing as under:-

“........Although the order of remand has been set-aside..... yet it should not be understood as depriving the High Court of its power to require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, within the meaning of Clause (b) of Sub-rule (1) of Rule 27 of Order 41. That power inheres in the Court and the Court alone which is hearing the appeal. It is the requirement of the Court (and not of any of the parties) and the conscience of the Court feeling inhibits in satisfactory disposal of the lis which rule the exercise of this power.”

Additional evidence in appeal is to be taken strictly in accordance with the statutory provisions of Order 41 Rule 27 Code of Civil Procedure and not otherwise.

(o) In Basayya I. Mathad V. Rudrayya S. Mathad & Ors., (2008) 3 SCC 120, the Apex Court held that additional evidence cannot be produced before the Appellate Court as a matter of right or in a routine manner. In order to adduce additional evidence, the parties are bound to satisfy the conditions stated in Order 41 Rule 47 and the Appellate Court must record reasons for admission of additional evidence.

(p) In North Eastern Railway Administration, Gorakhpur V. Bhagwan Das (D) by L.Rs., AIR 2008 SC 2139, the Court held that additional evidence is permissible at appellate stage if Court requires it to pronounce judgement or is necessary for giving judgment in more satisfactory manner. The appeal court must take the IA under Order 41 Rule 27 along with the appeal and not independently

(q) In K.R. Mohan Reddy V. M/s. Net Work Inc. Rep. Tr. M.D., AIR 2008 SC 579, the Supreme Court held that application under Order 41 Rule 27 should not be allowed so as to patch up the weakness of the evidence of the unsuccessful party before the trial Court, rather it will be different if the Court itself require the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty in pronouncing the judgment is not sufficient to issue such direction.

(r) In Anupam Gupta V. Sumeet Gupta, (2009) 1 SCC 254, the Apex Court held that while considering the application for adducing additional evidence the Court may not pass an unreasonable order. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself.

(s) In Parsotim Thakur & Ors. V. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held: “The provisions of S.107 as elucidated by O.41, R.27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R.27, Cl.(1) (b) it is only where the appellate Court “requires” it (i.e. finds it needful). …… The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but “when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent”, it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case…” (Emphasis added)

 



Reference: http://www.nja.nic.in/16%20CPC.pdf

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