CPC Sec. 107 (1) (d)

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POWER TO TAKE ADDITIONAL EVIDENCE: SECTION 107(1)(D), RULES 27-29 ORDER 41 CPC

R.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—

1. the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

aa. (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

2. 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.

R. 28. MODE OF TAKING ADDITIONAL EVIDENCE—

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

R.29. POINTS TO BE DEFINED AND RECORDED—

Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified. As a general rule, the appellate court shall decide an appeal on the evidence led by the parties before the trial court and should not admit additional evidence for the purpose of disposal of an appeal and the same is provided in Sub-rule (1) of Rule 27 of order 41. Section 107(1)(d), however, is an exception to the general rule, and empowers an appellate court to take additional evidence or require such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41. Rule 27 enumerates the circumstances in which the appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under:

1. Where the lower court has improperly refused to admit evidence which ought to have been admitted; or

2. Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree; or

3. Where the appellate court itself requires such evidence either (a) to enable it to pronounce judgment; or (b) for any other substantial cause.

(A) IMPROPER REFUSAL TO ADMIT EVIDENCE.—

Where the lower court has refused to admit evidence which was tendered and which ‘ought to have been admitted’, the appellate court may admit such evidence at the appellate stage. [Official Liquidator v. Raghawa Desikachar, (1974) 2 SCC 741. The expression ‘ought to have been admitted’ means ‘should be admitted’ in the exercise of sound discretion. The appellate court, therefore, before admitting additional evidence must be satisfied that the trial court was unjustified in refusing to admit such evidence.

(B) DISCOVERY OF NEW EVIDENCE.—

Clause (aa) of sub-rule (1) of Rule 27, inserted by the Amendment Act of 1976, empowers the appellate court to receive additional evidence at the appellate stage if the party seeking to produce additional evidence satisfies the court that, in spite of the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him when the decree was passed against him.

JAIPUR DEVELOPMENT AUTHORITY V. KAILASHWATI DEVI, (1997) 7 SCC 297: AIR 1997 SC 3243.

The provision, however, is not confined to cases where the parties have adduced some evidence in the lower court. Even if he has not adduced any evidence before the trial court, additional evidence can be permitted by the appellate court if the conditions laid down in clause (aa) of Rule 27(1) of Order 41 are satisfied.

(C) REQUIREMENT BY APPELLATE COURT.—

The appellate court may itself require additional evidence for either of the two purposes: (a) to enable it to pronounce judgment; or (b) for any other substantial cause.

K. VENKATARAMIAH V. A. SEETHARAMA REDDY, SUPRA.

The requirement must be of the appellate court and not of the party. The defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands.

ARJAN SINGH V. KARTAR SINGH, SUPRA; NATHA SINGH V. FINANCIAL COMMR.

The true test, therefore, is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.

A mere difficulty in coming to a decision is not sufficient for admission of evidence under Rule 27.The expression "to enable it (appellate court) to pronounce judgment" means when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands.

The ability to pronounce judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it. [Mahavir Singh v. Naresh Chandra.]

The authority and jurisdiction as conferred on the appellate court to allow fresh evidence is restricted. [N. Kamalam v. Ayyasamy, (2001) 7 SCC 503.] It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. [Municipal Corpn. of Greater Bombay v. Lala Pancham,AIR 1965 SC 1008);

The provisions of Rule 27 are not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and to fill in gaps. [State of U.P. v. Manbodhan Lai, supra; Maganlal v. Mulchand, 1969 UJSC 654;

Similarly, the appellate court may admit additional evidence "for any sufficient cause". The expression any substantial cause should be liberally construed so as to advance substantial justice between the parties.

RECORDING OF REASONS---

Whenever the appellate court admits additional evidence, it should record reasons for doing it. [R. 27(2). ▪ The underlying object of this provision is that where a further appeal lies from the decision of the appellate court, recording of reasons is necessary so as to enable the higher court to decide whether the discretion under the rule has been judicially exercised by the court below. [K. Venkataramiah v. A. Seetharama Reddy, supra.] The omission to record reasons, therefore, must be treated as a serious defect.

The provision, however, is directory and not mandatory, and failure to record reasons does not make the evidence inadmissible if the reception of such evidence is otherwise justified under the rule.

MODE OF TAKING ADDITIONAL EVIDENCE

Rules 28 and 29 lay down the mode of taking additional evidence when the appellate court admits additional evidence in appeal. The appellate court may take the evidence itself or direct the lower court from whose decree the appeal is preferred or any other subordinate court to take it.[R. 28.] Where the appellate court directs the lower court to record evidence, it should retain the appeal on its file and dispose it of on receipt of the additional evidence.

NATURE AND SCOPE OF THE POWER TO TAKE ADDITIONAL EVIDENCE

The power is discretionary and should be exercised on sound judicial principles and in the interests of justice. In Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi, [(1987) 1 SCC 227 at p. 243: AIR 1987 SC 294 at p. 304.] the Supreme Court stated, "The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly, the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue.

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