Appellate court to allow plea of additional evidence for ‘substantial cause’ and only if it is ‘required’ by the Court #indianlaws

For expending the power under Order 41 Rule 27 the Appellate Court has to read the words “or for any other substantial cause” with the word “requires”, which is set out at the commencement of the provision so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply. It is under these circumstances such a power could be exercised.

Supreme Court in the instant appeal dealt with the issue of adducing additional evidence at the appellate stage as provided for in Order 41 Rule 21 of the Code of Civil Procedure (Code).

Appellant/ Plaintiff in the instant appeal had instituted a suit for permanent injunction seeking order of restrain against the defendant (Plaintiff’s brother) from interfering in his peaceful possession and enjoyment of the property in suit.

The suit property came to be owned by Plaintiff’s father by way of sale from previous owner. His father executed a Will in favour of him. After death of his father, Appellant came in exclusive possession of the property.

Defendant disputed with Will and alleged that the suit was filed to evade partition of the property. It was further stated by Defendant that apart from two sons, there were three daughters as well. Two of the daughters died intestate leaving legal heirs and as such suit was bad for non-joinder of remaining daughter and legal heirs of pre-deceased daughters.

The Appellant in the trial got examined himself and also one ‘X’ stated to be attesting witness of the Will. Several documents including the Will were filed by the Appellant.

The trial court, after hearing the parties held that the plaintiff failed to prove that there was any will executed and the suit accordingly was dismissed. Against this an appeal was preferred wherein Plaintiff moved an application seeking direction for scientific investigation to find out whether the signature of his father was genuine by making comparisons with his admitted signatures by a competent hand-writing expert. The application was allowed and this order came to be challenged by Defendant which was allowed by the impugned order.

The Court observed that under the scheme of Code of Civil Procedure, 1908 (“the 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.

As per Rule 27, which deals with production of additional evidence in Appellate Court, the parties are not entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, unless (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) 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 (c) 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.

Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

As per the opening words of sub-rule (1) of Rule 27 the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court except under certain conditions, as prescribed therein. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfilment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document, nor it could be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him.

The Court after making reference to various precedents took note of following observations:

• 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 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. For such purpose conditions prescribed under Order 41 Rule 27 CPC should be existing.
• 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.

Appellant in the instant matter argued 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.

On the issue of exercise of revisional power under Section 115 of the Code it was observed that the words “or for any other substantial cause” must be read with the word “requires”, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply. It is under these circumstances such a power could be exercised.

Thus, in the instant matter, when appeal was pending before the lower appellate court, the impugned order passed by the High Court was held as liable to be set aside and the first appellate court was directed to decide the application for additional evidence afresh

[A. Andisamy Chettiar vs. A. Subburaj Chettiar]

(SC, 08.12.2015) – Civil Appeal No. 14055 of 2015