Additional Evidence cannot be produced at Appellate Stage without fulfilling any of the conditions mentioned in Or.41 R 27; SC [Read Judgment]

The Supreme Court has held in a recent judgment that parties to a civil litigation are not entitled to produce additional evidence, whether oral or documentary, in the appellate court, but for the three situations contemplated in Order 41 Rule 27 of the Code of Civil Procedure, 1908 (for short “the Code”).The Supreme Court also held that it was improper for the High Court in exercise of its revisional jurisdiction to interfere with an order of the lower appellate court allowing an application for additional evidence at the interim stage when the appeal was pending for final hearing before the appellate court.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 Order XLI of the Code.Or.41 R.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 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.”Relying on these provisions of the Code, the Apex Court held in categorical terms that the parties cannot be allowed to fill the lacunae in their evidence at the appellate stage. “It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27,” ruled a bench of the Court comprising of Justice Dipak Misra and Justice Prafulla C. Pant.The aforesaid ruling came in a case wherein the Madras High Court Bench at Madurai hearing a Civil Revision Petition preferred by the defendant in a suit for permanent injunction seeking to restrain him from interfering with peaceful possession and enjoyment of the plaintiff’s property in suit against the order passed by the lower appellate court allowing the plaintiff’s application for conduct of scientific investigation to find out whether the signature of Ayyappan Chettiar, the plaintiff’s father in Ex. A-4 will is genuine by comparing the signature of Ayyappan Chettiar, in Ex. A-4 with his admitted signatures in Ex. B-1 to B-3, by a competent hand-writing expert.The lower appellate court had allowed the said application and directed the plaintiff (appellant in the appeal) to deposit a sum of Rs.5000/- as fee.The Madras High Court allowed the Civil Revision Petition preferred by the defendant against the order of the lower appellate court, against which order the plaintiff approached the Supreme Court.The Apex Court after referring to the provisions of Or.41 R.27 CPC held that in the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him.Proceeding thereafter to examine whether the condition in Rule 27(1)(b) was met in the facts and circumstances of the case, the Court adverted to the dictum laid down in the decision reported in R. Mohan Reddy v. Net Work Inc., (2007) 14 SCC 257 wherein it had been held that: “The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires 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 is not sufficient to issue such direction…...”Justice Prafulla C. Pant writing the judgment for the Bench, also adverted to the decision in North Eastern Railway Admn. v. Bhagwan Das, (2008) 8 SCC 511 wherein the Supreme Court had occasion to observe thus:-“13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to ...

Additional Evidence cannot be produced at Appellate Stage without fulfilling any of the conditions mentioned in Or.41 R 27; SC [Read Judgment]

S.Ajith

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