Thursday, 24 December 2015

When appellate court can permit parties to adduce additional evidence at appellate stage?

 We have considered the argument advanced on behalf of
the appellant and also perused the law laid down by this Court
as to the exercise of revisional power under Section 115 of the
Code in such matters. In Mahavir Singh and others v.
Naresh Chandra and another (2001) 1 SCC 309
, explaining the scope of
revision in the matters of acceptance of additional evidence by
the lower appellate court interpreting expression “or for any
other substantial cause” in Rule 27 of Order XLI, this Court
has held as under: -
“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 as noticed by the Privy
Council in Kessowji Issur v. G.I.P. Rly. [ILR
(1907-08) 31 Bom 381]. It is under these
circumstances such a power could be exercised.
Therefore, when the first appellate court did not find
the necessity to allow the application, we fail to
understand as to how the High Court could, in
exercise of its power under Section 115 CPC, have
interfered with such an order, particularly when the
whole appeal is not before the Court. It is only in
the circumstances when the appellate court
requires such evidence to pronounce the judgment
the necessity to adduce additional evidence would
arise and not in any other circumstances. When the
first appellate court passed the order on the
application filed under Order 41 Rule 27 CPC, the
whole appeal was before it and if the first appellate
court is satisfied that additional evidence was not
required, we fail to understand as to how the High
Court could interfere with such an order under
Section 115 CPC.”
SC observed that under the scheme of Code of Civil Procedure, 1908 (for short "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 Section 107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI. From the opening words of Sub-rule (1) of Rule 27it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned 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 fulfillment of either of the three conditions mentioned in Rule 27.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 14055 OF 2015
(Arising out of S.L.P. (C) No. 7798 of 2015)
A. Andisamy Chettiar … Appellant
Versus
A. Subburaj Chettiar …Respondent
Dated;December 08, 2015.
Prafulla C. Pant, J.
Citation: 2015(13)SCALE378

This appeal is directed against order dated 07.11.2014,
passed by the High Court of Judicature at Madras, Bench
Madurai, in Civil Revision Petition (PD) (MD) No. 1787 of 2008
whereby the revision was allowed, and order dated 12.03.2008
passed by Subordinate Judge, Virudhunagar, on I.A. No. 3 of
2008 (in A.S. No. 55 of 2007), is set aside.
2. We have heard learned counsel for the parties and
perused the papers on record.
3. Succinctly stated, facts of this case are that the
appellant/plaintiff instituted Original Suit No. 92 of 2003
before District Munsif, Virudhunagar, for permanent
injunction restraining the defendant from interfering in his
peaceful possession and enjoyment of the property in suit. It
is pleaded in the plaint that originally the property in dispute
was owned by one Gopalsamy Pillai. On 21.08.1963
Gopalsamy Pillai transferred the property by executing a sale
deed in favour of one Lakshmiammal. Lakshmiammal further
transferred the property to Gurusamy Naicker through deed
dated 26.12.1968. Plaintiff’s father Ayyappan Chettiar
purchased the property from Gurusamy Naicker, and
constructed his house. It is further pleaded that Ayyappan
Chettiar executed Will dated 13.12.1990 in favour of the
plaintiff, and after death of his father in 1997, the plaintiff is
in exclusive possession of the property. Alleging that the
defendant has no right over the disputed property, relief of
permanent injunction against him is sought in the suit.
Plaintiff Andisamy Chettiar and defendant Subburaj Chettiar
are sons of Ayyappan Chettiar.
4. The defendant filed his written statement and contested
the suit. It is not disputed in the written statement that
Ayyappan Chettiar, who purchased the property from
Gurusamy Naicker, died on 12.10.1997. However, it is
disputed that Ayyappan Chettiar executed Will dated
13.12.1990, relied by the plaintiff. It is alleged by the
defendant that the plaintiff has filed suit for permanent
injunction only to evade partition of the property. It is also
pleaded by the defendant that apart from two sons, Ayyappan
Chettiar had three daughters, namely, Lakshmi, Avudaithai
and Andal. Lakshmi and Andal died intestate leaving legal
heirs, as such, suit is bad for non-joinder of remaining
daughter of Ayyappan Chettiar and legal heirs of pre-deceased
daughters.
5. On the basis of pleadings of the parties following issues
were framed by the trial court: -
(i) Whether Ayyappan Chettiar executed a Will in favour of
the plaintiff in respect of the property in suit?
(ii) Whether the plaintiff is entitled to the relief of permanent
injunction?
(iii) To what other relief, if any, the plaintiff is entitled?
6. The plaintiff got examined himself as PW-1 Andisamy
Chettiar and he also got examined PW-2 Selvarajan, stated to
be attesting witness of the Will. Nine documents (including
Will Ex.A-4) were filed by the plaintiff. On behalf of the
defendant, he got himself examined as DW-1 Subburaj
Chettiar, and filed three documents. The trial court, after
hearing the parties, decided issue No. 1 against the plaintiff
holding that the plaintiff failed to prove that Ayyappan
Chettiar executed the Will relied on by him. On the basis of
finding on issue No. 1, issue Nos. 2 and 3 are also decided in
favour of the defendant, and the suit was dismissed vide
judgment and order dated 05.02.2007.
7. Aggrieved by the decree passed by the trial court, the
plaintiff filed appeal (A.S. No. 55 of 2007) before the first
appellate court, i.e. Subordinate Judge, Virudhunagar.
8. During the pendency of A.S. No. 55 of 2007 before the
first appellate court, an application (I.A. No. 3 of 2008) was
moved on behalf of the plaintiff with following prayer: -
“Therefore it is just and necessary that this Hon’ble
Court be graciously pleased to direct a scientific
investigation to find out whether the signature of
Ayyappan Chettiar, my father in Ex. A-4 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, and
further direct him to file a report to the scientific
investigation done by him and justice thus
rendered.”
9. The first appellate court, vide order dated 12.03.2008,
allowed the I.A. No. 3 of 2008, and directed the appellant to
deposit a sum of Rs.5000/- as fee.
10. The defendant challenged the order passed by the first
appellate court, allowing the application for additional
evidence, before the High Court in Civil Revision Petition (PD)
(MD) No. 1787 of 2008, which is allowed by said court by the
impugned order assailed before us.
11. Under the scheme of Code of Civil Procedure, 1908 (for
short “the Code”) whether oral or documentary, it is the trial
court before whom parties are required to adduce theirPage 6
Page 6 of 13
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. Rule 27 of Order XLI reads as under: -
“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.Page 7
Page 7 of 13
(2) Wherever additional evidence is allowed to
be produced by an Appellate Court, the Court shall
record the reason for its admission.”
 (emphasis supplied)
12. From the opening words of sub-rule (1) of Rule 27,
quoted above, it is clear that the parties are not entitled to
produce additional evidence whether oral or documentary in
the appellate court, but for the three situations mentioned
above. 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 fulfillment 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 (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. Now it is to be seen whether the third
condition, i.e. one contained in clause (b) of sub-rule (1) of
Rule 27 is fulfilled or not.Page 8
Page 8 of 13
13. In K.R. Mohan Reddy v. Net Work Inc.1
, this Court has
held as under: -
“19. 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…...”
14. In North Eastern Railway Admn. v. Bhagwan Das2
,
this Court observed 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…..…”
1
(2007) 14 SCC 257
2
(2008) 8 SCC 511Page 9
Page 9 of 13
15. In N. Kamalam (dead) and another v. Ayyasamy and
another3
, this Court, interpreting Rule 27 of Order XLI of the
Code, has observed in para 19 as under: -
“……. the provisions of Order 41 Rule 27 have not
been engrafted in the Code so as to patch up the
weak points in the case and to fill up the omission
in the court of appeal – it does not authorize any
lacunae or gaps in the evidence to be filled up. The
authority and jurisdiction as conferred on to the
appellate court to let in fresh evidence is restricted
to the purpose of pronouncement of judgment in a
particular way.”
16. In Union of India v. Ibrahim Uddin and another4
, this
Court has 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
3
(2001) 7 SCC 503
4
(2012) 8 SCC 148
into consideration the additional evidence sought to
be adduced…………..”
17. Learned counsel for the appellant argued before us 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.
18. We have considered the argument advanced on behalf of
the appellant and also perused the law laid down by this Court
as to the exercise of revisional power under Section 115 of the
Code in such matters. In Mahavir Singh and others v.
Naresh Chandra and another5
, explaining the scope of
revision in the matters of acceptance of additional evidence by
the lower appellate court interpreting expression “or for any
other substantial cause” in Rule 27 of Order XLI, this Court
has held as under: -
“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 as noticed by the Privy
Council in Kessowji Issur v. G.I.P. Rly. [ILR
(1907-08) 31 Bom 381]. It is under these
circumstances such a power could be exercised.
5
(2001) 1 SCC 309
Therefore, when the first appellate court did not find
the necessity to allow the application, we fail to
understand as to how the High Court could, in
exercise of its power under Section 115 CPC, have
interfered with such an order, particularly when the
whole appeal is not before the Court. It is only in
the circumstances when the appellate court
requires such evidence to pronounce the judgment
the necessity to adduce additional evidence would
arise and not in any other circumstances. When the
first appellate court passed the order on the
application filed under Order 41 Rule 27 CPC, the
whole appeal was before it and if the first appellate
court is satisfied that additional evidence was not
required, we fail to understand as to how the High
Court could interfere with such an order under
Section 115 CPC.”
19. In Gurdev Singh and others v. Mehnga Ram and
another6
, this Court, on similar issue, has expressed the view
as under: -
“We have heard learned counsel for the parties. The
grievance of the appellants before us is that in an
appeal filed by them before the learned Additional
District Judge, Ferozepur, in an application under
Order XLI, Rule 27(b), Code of Civil Procedure (CPC)
the learned Additional District Judge at the final
hearing of the appeal wrongly felt that additional
evidence was required to be produced as requested
by the appellants by way of examination of a
handwriting expert. The High Court in the
impugned order exercising jurisdiction under
Section 115 CPC took the view that the order of the
appellate court could not be sustained. In our view
the approach of the High Court in revision at that
6
(1997) 6 SCC 507
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. Only on this short
question, without expressing any opinion on the
merits of the controversy involved and on the
legality of the contentions advanced by both the
learned counsel for the parties regarding additional
evidence, we allow this appeal, set aside the order of
the High Court.”
20. In view of the law laid down by this Court, as discussed
above, 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 impugned
order passed by the High Court cannot be upheld and the
same is set aside. However, to do complete justice between
the parties, we think it just and proper to direct the first
appellate court to decide the application for additional
evidence afresh in the light of observations made by this Court
regarding principles on which such an application can be
allowed or rejected. We order accordingly. We further clarify
that we have not expressed any opinion as to the merits of the
case. Accordingly, the appeal is disposed of. No order as to
costs.
………………….....…………J.
 [Dipak Misra]
 .………………….……………J.
 [Prafulla C. Pant]
New Delhi;
December 08, 2015.
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