O.41 R.27 CPC | Appellate Court Cannot Dispose Of Application For Production Of Additional Evidence Before Final Hearing: Patna High Court

The Patna High Court on Thursday (July 25) observed that it is impermissible for the First Appellate Court to dispose of the application under Order 41 Rule 27 of CPC for the production of additional evidence at the appellate stage during the pre-hearing stage.

The Court said that the plea for the production of additional evidence at an appellate stage should be disposed of at the final hearing stage, not at the pre-hearing stage.

“The Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin & Anr., reported in 2013 (1) PLJR (SC) 48 has held that the application for taking additional evidence 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 and the same could not be disposed of prior to the final stage of hearing of the appeal. However, in the present case, the learned first appellate court has disposed of the petition at the very beginning of the appeal.”, the bench comprising Justice Arun Kumar Jha observed.

Further, the court observed that whenever an application was made before the First Appellate Court for adducing additional evidence, then it was incumbent upon the First Appellate Court to give a finding about the relevancy of the evidence that whether it requires document for pronouncement of judgment or for any other substantial cause. The court added that such a finding should be given at the final hearing stage, not at the pre-hearing stage.

Another condition for taking the additional evidence at the appellate stage is that 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.

In the present case, the applicant was not aware of the evidence it sought to produce before the appellate court under Order 41 Rule 27 CPC. It is only in the year 2020, that they came to know about the said document and for this reason, no pleading was incorporated earlier in the plaint. The First Appellate Court had disposed of the application without discussing the relevance of the document and even its usefulness in the decision of the appeal.

Setting aside the First Appellate Court decision, the Court held that the First Appellate Court without discussing the relevancy and usefulness of the document in the decision had entered into the merits of the document and raised a question over its genuineness on the possibility of fabrication or false document to procure the judgment.

The Court took reference to the Supreme Court's case of Wadi Vs. Amilal and Ors., reported in (2015) 1 SCC 677 where the Top Court held that normally parties to an appeal are not entitled to produce additional evidence in the appellate court to cure a lacuna or fill up a gap in a case. However, if the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, it may allow such document to be produced or witness to be examined.

Accordingly, the court remanded back the matter to the First Appellate Court to decide the matter afresh in the light of Union of India vs. Ibrahim Uddin & Anr.

Appearance :

For the Petitioner/s : Mr. J. S. Arora, Sr. Advocate Mr. Manoj Kumar, Advocate

For the Respondent/s : Mr. Ashok Kumar Pathak, Advocate

Case Title: Mossamat Chintamani Devi & Ors Versus Lalan Chaubey & Anr., CIVIL MISCELLANEOUS JURISDICTION No.35 of 2022

Citation: 2024 LiveLaw (Pat) 60

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