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
1[(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 Appellate Court
requires any document to be produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial cause, the Appellate Court
may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional
evidence is allowed to be produced by an Appellate Court, the Court shall record
the reason for its admission.
Note: 1. Ins. by Act 104 of 1976, s. 87 (w.e.f. 1-2-1977).
Part in Red is
original provisions from CPC reproduced here for reference.
Simplified
explanation:
Order XLI Rule 27 deals with the issue of taking evidence at appellate stage.
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.
The Appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for ‘any other substantial cause'.
The 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.
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.
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.
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.
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.
The
Appellate Court should not, ordinarily allow new evidence to be adduced in order
to enable a party to raise a new point in appeal. Similarly, where a party on
whom the onus of proving a certain point lies fails to discharge the onus, he
is not entitled to a fresh opportunity to produce evidence, as the Court can,
in such a case, pronounce judgment against him and does not require any
additional evidence to enable it to pronounce judgment.
Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence.
It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
The
inadvertence of the party or his inability to understand the legal issues involved
or the wrong advice of a pleader or the negligence of a pleader or that the
party did not realise the importance of a document does not constitute a
"substantial cause" within the meaning of this rule. The mere fact
that certain evidence is important, is not in itself a sufficient ground for
admitting that evidence in appeal.
The words
"for any other substantial cause" must be read with the word
"requires" in the beginning of sentence, so that it is only where,
for any other substantial cause, the Appellate Court requires additional
evidence, that this rule will apply, e.g., when evidence has been taken by the
lower Court so imperfectly that the Appellate Court cannot pass a satisfactory
judgment.
Whenever
the appellate Court admits additional evidence it should record its reasons for
doing so. (Sub-rule 2). It is a statutory provision which operates as a check against
a too easy reception of evidence at a late stage of litigation and the
statement of reasons may inspire confidence and disarm objection. Another
reason of this requirement is that, where a further appeal lies from the
decision, the record of reasons will be useful and necessary for the Court of
further appeal to see, if the discretion under this rule has been properly
exercised by the Court below. The omission to record the reasons must, therefore,
be treated as a serious defect. But this provision is only directory and
not mandatory, if the reception of such evidence can be justified under the
rule.
The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate Court. A mere reference to the peculiar circumstances of the case, or mere statement that the evidence is necessary to pronounce judgment, or that the additional evidence is required to be admitted in the interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
Stage of
consideration:
An
application under Order XLI Rule 27 CPC isto be considered at the time of
hearing of appeal on merits so as to find whether the documents and/or the evidence
sought to be adduced have any relevance/bearing on the issues involved.
The
admissibility of additional evidence does not depend upon the relevancy to the issue
on hand, or on the fact, whether the applicant had an opportunity for adducing such
evidence at an earlier stage or not, but it depends upon whether or not the Appellate
Court requires the evidence sought to be adduced to enable it to pronounce judgment
or for any other substantial cause. The true test, therefore is, whether the Appellate
Court is able to pronounce judgment on the materials before it without taking
into consideration the additional evidence sought to be adduced. Such occasion
would arise only if on examining the evidence as it stands the court comes to the
conclusion that some inherent lacuna or defect becomes apparent to the Court.
Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/ inexecutable and is liable to be ignored.
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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