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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