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 take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist…..…”

The Court also noted the decision reported in Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148 wherein the Apex Court had held as under:-

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out 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…………..”

The appellant (plaintiff in the suit) essentially contended that the High Court, in revision, at an interim stage of appeal pending before the lower appellate court, should not have interfered in the matter of requirement of additional evidence.

Examining the scope of the exercise of revisional jurisdiction in the matters of acceptance of additional evidence by the lower appellate court, the Apex Court referred to its earlier decision in Gurdev Singh and others v. Mehnga Ram and another, (1997) 6 SCC 507 wherein it was held that the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate court. “The reason is obvious. The appellate court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction.”

Keeping in view the law laid down by the Court regarding exercise of revisional powers in the matter of allowing the application for additional evidence, when appeal is pending before the lower appellate court, the Apex Court set aside the impugned order passed by the High Court but in order to do complete justice between the parties, proceeded to direct the first appellate court to decide the application for additional evidence afresh in the light of observations made by the Court regarding principles on which such an application can be allowed or rejected.

Read the Judgment here.