New evidence can be accepted in appeal case

Not as a matter of right, however, if inspite of due deligence you could not have brought the said evidence on record or that it was not within your knowledge then, the court may grant you the permission to give additional evidence.

[ 1 ]

SUPREME COURT OF INDIA

Malayalam Plantations Ltd. vs State Of Kerala & Anr. 

on 9 November, 2010

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 309 OF 2003

11) If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. 12) Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or 13

events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case.

[ 2 ]

Bombay High Court

Sardar Dastur Schools Trust And ... vs Adil Jamshed, Frenchman Since ... on 13 June, 2002

Equivalent citations: 2003 (1) MhLj 226

8. ..... The point for consideration which arises, therefore, is whether the respondents had made out a case of due diligence for production of documents under Order 41, Rule 27(b) of Civil Procedure Code.

9. The lower Appellate Court has held that the evidence on record shows that the respondents had no knowledge about the existence of the documents, but at the same time, there is nothing on record nor any finding by the lower Appellate Court as regards the point of time when the respondents acquired knowledge about the documents in question. For the purpose of establishing due diligence on the part of the applicant in a matter for production of documents in terms of Order 41, Rule 27(b), it is necessary for the applicant to satisfy the Court that in spite of taking appropriate steps, the applicant could not produce such evidence prior to the date of the application seeking to produce such documents. Bare reading of the application filed by the respondents hereinbefore the lower Appellate Court discloses statements like "............the appellants have now got denoting that the respondents have negotiated .......after looking into the now available additional evidence by way of documents .........the appellants have now been able to lay then hand on the present evidence ........." etc. It does not disclose as to when the said additional evidence was made available to the respondents. In the absence of such information, apparently, there was no material on record to arrive at any finding regarding due diligence on the part of the respondents in the matter of production of the said additional evidence. Undoubtedly, the disclosure of the source from which the documents are obtained may not be necessary in each and every case as has been rightly observed by the lower Appellate Court. However, it can be a relevant factor in deciding the issue pertaining to due diligence. Whether the applicant could have acquired the knowledge about such document from the person from whose custody the same were obtained, much prior to filing of the application or not can be ascertained only after such source is disclosed. When the party itself chooses to be totally silent about such source as well as that of the timing of acquisition of knowledge about the existence of the documents, it cannot be said that the party had acted with due diligence in approaching the Court for the purpose of production of additional evidence. Due diligence on the part of the applicant seeking to produce additional evidence, and that too at the appellate stage, has to be established by disclosing the acts revealing the requisite and adequate attention and due and necessary care in procuring and/or attempting to procure the proposed additional evidence by such an applicant prior to the date of approaching the Court seeking leave to produce such additional evidence. It should not be forgotten that the Court is not bound to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court to be exercised judiciously and sparingly, as has been ruled by the Apex Court in Mahavir Singh and Ors. v. Naresh Chandra and Anr., reported in 2000 AIR SCW 4000.

10. It appears that the Court below was very much impressed by the contention of the respondents that they are not parties to the documents or that they are strangers to the documents. The point which is required to be considered is not whether the parties are stranger to the documents or not, but whether there was any opportunity to the party to produce the document prior to the date on which the party seeks to produce the same. In order to ascertain the same, again the date and source from which the documents were obtained assume great importance and both these factors are undisputedly not disclosed by the respondents.

[ 3 ]

Supreme Court of India

Union Of India vs Ibrahim Uddin & Anr. on 17 July, 2012

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1374 of 2008

Order XLI Rule 27 C.P.C.

25. 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. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).

26. 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. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

27. 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. [Vide: Lala Pancham & Ors. (supra) ].

28. 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. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

29. 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.

30. 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.

31. Whenever the appellate Court admits additional evidence it should record its reasons for doing so. (Sub-rule 2). It is a salutary 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.

32. 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 comp1iance with the requirement as to recording of reasons.

34. In The Land Acquisition Officer, City Improvement Trust Board, Bangalore v. H. Narayanaiah etc. etc., AIR 1976 SC 2403, while dealing with the issue, a three judge Bench of this Court held as under: â We are of the opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it an opportunity should have been given to the appellant to rebut any inference arising from its insistence by leading other evidence. â (Emphasis added)

35. A Constitution Bench of this Court in K. Venkataramiah (Supra), while dealing with the same issue held:

â It is very much to be desired that the courts of appeal should not overlook the provisions of cl. (2) of the Rule and should record their reasons for admitting additional evidenceâ ¦.. The omission to record reason must, therefore, be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory.â (Emphasis added)

In the said case, the court after examining the record of the case came to the conclusion that the appeal was heard for a long time and the application for taking additional evidence on record was filed during the final hearing of the appeal. In such a fact-situation, the order allowing such application did not vitiate for want of reasons.

36. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record such application may be allowed.

37. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

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Stage of Consideration :

38. An application under Order XLI Rule 27 CPC is to 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. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

39. In Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held:

?â 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 â requiresâ 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 â when on examining the evidence as it stands, some inherent lacuna or defect becomes apparentâ , 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 caseâ ¦â (Emphasis added) 

(See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128)

40. In Arjan Singh v. Kartar Singh & Ors. (supra), this Court held: â ⠦⠦⠦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 judgmentâ (Emphasis added)

41. 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.

In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.

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[ 4 ]

Bombay High Court

Ferani Hotels Pvt.Ltd vs Nusli Neville Wadia on 27 September, 2012

1 of 22 CHS.895.2011

4. ..... Litigating parties must exercise due diligence when they pursue their remedies at trial. If a party has not been diligent in producing evidence at the trial, its indolence cannot be overcome by producing evidence in appeal. The requirement of the existence of diligence is a carefully engrafted condition which attaches to the exception carved out by clause (aa). (Page 4)

5. The interpretation of the provisions of Order XLI, Rule 27 of the Code is not res-integra. In State of U.P. Vs. Manbodhan D. Srivastava1, the Supreme Court observed as follows :

" ... ... It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the 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 between the parties. ... ..."

These principles were reiterated by a Constitution Bench of the Supreme Court in K.Venkataramiah Vs. A.Seetharama Reddy and others2, where the Court held as follows :

"10. Section 107 of the Code of Civil Procedure empowers the appellate court "to take additional evidence or to require such evidence to be taken", "subject to such conditions and limitations as may be prescribed." Rule 27 of O.41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional evidence for itself - either to enable it to pronounce judgment or for any other 1

AIR-1957-SC-912

2 AIR-1963-SC-1526

8 of 22 CHS.895.2011

substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission."

6. The Supreme Court, while dealing with the expression `substantial cause' within the meaning of Clause-(b) of Rule 27 of Order XLI, noted that there may be a case where even though the Court finds that the Court is able to pronounce its judgment and it cannot strictly say that it requires additional evidence "to enable it to pronounce the judgment", it still considers that in the interest of justice something which remains obscure should be filed up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under Rule 27(1)(b) of the Code.

7. The subject has been revisited and summarized in a recent judgment of the Supreme Court in Union of India Vs. Ibrahim Uddin and another3. .....

8. ..... Under Clause(aa) of Rule 27(1) of Order XLI of the Code, a party seeking to produce additional evidence has to `establish' and that would mean establish to the satisfaction of the Court that the conditions prescribed therein, warranting the exercise of the exceptional power of the Court, have been established. A mere recitation of the language used in the statute does not constitute establishing of the conditions for the exercise of the power. 

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10. ..... That additional evidence inviting the Court's attention to a subsequent event can be produced under Order XLI, Rule 27 of the Code was enunciated in a judgment of the Supreme Court in M.M.Quasim Vs. Manohar Lal Sharma and Others4. 

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..... The Appellant has evidently gone about trying to collect evidence after the judgment of the learned Single Judge dated 15 December 2010. An Appellant cannot seek to explain its own failure to produce certain evidence before the Trial Court by stating that it was after the judgment in trial that it made an effort to and obtained additional evidence. To allow production of such evidence in appeal would be to permit the Appellant to fill up a lacuna.