Supreme Court Explains Parameters To Decide Application For Additional Evidence under Order 41 Rule 27 CPC

 12. The decisions relied on by the Appellant can be captured and

summarised as follows:

12.1 An Appellate Court has a statutory duty to deal with an Application for Additional Evidence on its merits. The application cannot be ignored while the Court proceeds to pronounce the final Judgment. Jatinder Singh (supra)

12.2 The Application must be considered simultaneously with the hearing of the main Appeal on its merits to determine whether the Court "requires" the documents to pronounce Judgment or for any other substantial cause. North Eastern Railway Administration (supra)

12.3 The Appellate Court must pass a specific order either allowing or rejecting the application. If the production of documents is allowed, the Court is obligated to record its reasons for admission.

12.4 Before undertaking the exercise of evaluating the additional evidence, the Appellate Court must first examine the party's pleadings to ensure that the foundational case set up supports the introduction of the proposed evidence.

12.5 Dismissing an appeal without deciding a pending application for additional evidence constitutes a jurisdictional error and results in a severe miscarriage of justice.

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

(@ SPECIAL LEAVE PETITION (CIVIL) DIARY NOS. 10525 OF 2026)

CHOWDAPPA Vs HANUMANTHARAYAPPA AND OTHERS 

Author: S.V.N. BHATTI, J.

Dated: August 6, 2026.

Citation: 2026 INSC 816

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Supreme Court: Additional evidence in appeal can be admitted at the time of hearing of the appeal on merits under Order 41 Rule 27 CPC,

27. Production of additional evidence in Appellate Court.--(a) 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.

10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh and Anr. v. Mehar Singh and Ors.   MANU/SC/8065/2008 : AIR 2009 SC 354 and Shyam Gopal Bindal and Ors. v. Land Acquisition Officer and Anr.   MANU/SC/0025/2010 : (2010) 2 SCC 316.

11. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case.

12. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 309 and 310 of 2003

Decided On: 09.11.2010

Malayalam Plantations Ltd. Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and B.S. Chauhan, JJ.

Author: P. Sathasivam, J.

 Citation: 2010 INSC 761, MANU/SC/0935/2010

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Additional Evidence in Appeal: Why the Application Is Decided at Final Hearing?

 Under Order 41 Rule 27 CPC, the application for additional evidence is generally decided at the time of final hearing of the appeal on merits, because the appellate court must first see whether the existing record is sufficient to pronounce judgment. The rule starts with a prohibition: parties have no right to produce fresh evidence in appeal, except in the limited situations mentioned in clauses (a), (aa), and (b).

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Silent Defendants, Noisy Records: How District Judges Should Handle Undefended Partition Appeals and Additional Evidence

 When a defendant appears but never files a written statement, and yet the trial court dismisses a partition suit with minimal reasoning, the real work shifts to the first appellate court. For District Judges, such appeals are a common—and delicate—test of how far one can go on the existing record, how to treat additional evidence under Order XLI Rule 27 CPC, and how strictly to enforce the “no new case in appeal” rule.

This article distils core principles from the CPC, the Evidence Act and leading Supreme Court decisions, using the typical pattern of a partition suit based on revenue records, an absent written statement, unrebutted plaintiff’s evidence, and an Order XLI Rule 27 application for certified 7/12 extracts or similar public documents.

“First appeals are not a mere formality; the District Court is the final court on facts.”

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Pleadings-First Doctrine: Supreme Court Clarifies Mandatory Scrutiny of Pleadings before Allowing Additional Evidence under Order XLI Rule 27 CPC

In the application preferred Under Order XLI Rule 27(1) of the Code, the Defendant stated that he got the information that there was no such sale by the Plaintiffs in the last week of June, 2000. After making inquiries in the office of the Sub-Registrar, he got such information and obtained certified copies of extracts of said documents. It can be seen that the High Court has proceeded to consider the application under provisions of Order XLI Rule 27(1) of the Code without examining as to whether the additional evidence sought to be led was supported by the pleadings of the Defendant in the written statement. {Para 7}

8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence Under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal and Anr.   MANU/SC/8199/2008 : 2008:INSC:1072 : AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin and Anr.,   MANU/SC/0561/2012 : 2012:INSC:288 : (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the Defendant for leading additional evidence.

9. As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the Defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires re-consideration by the High Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10458 of 2010 

Decided On: 22.08.2025

Iqbal Ahmed (Dead) by L.Rs. and Ors. Vs. Abdul Shukoor.

Hon'ble Judges/Coram:

Pamidighantam Sri Narasimha and A.S. Chandurkar, JJ.

Author: A.S. Chandurkar, J.

Citation: 2025 INSC 1027, MANU/SC/1139/2025.

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Supreme Court: Appellants can not rely upon the additional evidence at the appellate stage in the absence of foundational pleadings in plaint

 11.11. Further, even at the stage of the earlier suit instituted by the predecessors-in-interest of the Appellant-Plaintiffs, their consistent case was one of lawful title to the suit property. No plea of adverse possession was ever raised against the Respondent-Defendants. The Appellants wish to rely upon the additional evidence, namely, the entries in the General Land Register maintained by the Respondent-Defendants to show that the suit property is recorded as private land. Such an endeavour, at the appellate stage and in the absence of foundational pleadings, is wholly impermissible in law. Mere recording of the land in suit as private land in the GLR does not in any manner benefit the Appellants claim of ownership.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5168-5169 of 2011

Decided On: 09.03.2026

Gobind Singh and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Vikram Nath and Sandeep Mehta, JJ.

Author: Vikram Nath, J.

Citation: 2026 INSC 211,MANU/SC/0205/2026.

Read full judgment here: Click here.

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Supreme Court : Additional Evidence Cannot Be Allowed To Fill Lacunae In Appeal

11.17. In such a backdrop, when the Appellant-Plaintiffs themselves asserted title on the basis of long and continuous possession through their predecessors, the subsequent attempt to introduce additional evidence at the appellate stage assumes little legal significance. Once the trial had concluded and the decree was under challenge in appeal, the Appellants could not be permitted to fill the gaps in their case by seeking to adduce further material to fortify a claim that was fundamentally flawed.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 5168-5169 of 2011

Decided On: 09.03.2026

Gobind Singh and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Vikram Nath and Sandeep Mehta, JJ.

Author: Vikram Nath, J.

Citation: 2026 INSC 211,MANU/SC/0205/2026

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Ex Parte at Trial, Active in Appeal: Can the Defendant File Fresh Documents in First Appeal?

Q :- Suit is proceeded exparte against defendant before trial court. trial court has dismissed the suit of plaintiff. plaintiff has filed appeal against dismissal of his suit. in that appeal, notice is issued to defendant. he appears before appellate court and produce copies of documents in support of his case. whether appellate court can consider those documents while deciding that appeal. what role defendant can play in the appeal?

Ans:-A defendant who was proceeded ex parte before the trial court does not get an unrestricted right to introduce fresh documents when he appears as respondent in the plaintiff’s first appeal. The appellate court normally decides the appeal on the trial court record, and any fresh documents can be considered only if they are admitted as additional evidence under Section 107 CPC read with Order XLI Rule 27 CPC.

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Supreme Court: Appellate Court Can't Create New Case For Parties & Frame Issues Without Following Order XLI of CPC

 It is needless to say that Order XLI of the Code of Civil

Procedure, 1809 would apply to the appeals from the appellate

decrees also, as contemplated in Rule-1, Order XLII of the

said Code. {Para 11}

12. As per Order XLI Rule 25, the appellate court may, if

necessary, frame issues and refer the same for trial to the

court whose decree is appealed from, and direct such court to

take additional evidence required. Further, as per Rule-27

Order XLI, the Appellate Court may allow evidence or document

to be produced or witness examined, in the circumstances

stated therein, after recording the reasons for such

admission of evidence. However, the Appellate Court can not

create a new case for the party, frame the issues and decide

the issues without following the procedure contemplated under

Order XLI of CPC.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Civil Appeal No.3500/2024

RAMA KT. BARMAN (DIED) THR. LRS  Vs

MD. MAHIM ALI & ORS.

Author: BELA M. TRIVEDI, J.

Citation: 2024 INSC 644.

Dated: 21ST AUGUST, 2024.

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What are necessary conditions for deciding amendment of pleading application?

 Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors.MANU/SC/0002/1957 : [1957]1SCR595 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see: Gajanan Jaikishan Joshi v. Prabhakar Mohanlal KalwarMANU/SC/0188/1989 : (1990)1SCC166. {Para 15}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2785 of 2008 

Decided On: 11.04.2008

North Eastern Railway Administration, Gorakhpur Vs Bhagwan Das (D) by Lrs.

Hon'ble Judges/Coram:

S.B. Sinha and Devinder Kumar Jain, JJ.

Author: Devinder Kumar Jain, J.

Citation: AIR 2008 SC 2139,(2008) 8 SCC 511.

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What are provisions regarding production of documents in CPC?

 O 7 R 14 of CPC.

14. Production of document on which plaintiff sues or relies.—(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.

[(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness merely to refresh his memory.]

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Under which circumstances Appellate court can call upon Municipal Corporation to produce additional evidence at appellate stage?

 It is no doubt true that the Municipal authorities, due to negligence or otherwise, did not place these orders of delegation on the record of the Small Cause Court. Our attention has, however, been drawn to the Rules, known as "Municipal Appeal Rules, 1976" made by this Court in exercise of the powers conferred under Article 227 of the Constitution. Rule 10 of, the said Rules, inter alia, states that the written reply shall be set out in paragraphs numbered consecutively stating whether the facts are disputed by the respondent or not. In the instant case, there has been a general denial in the written statement, with regard to the validity of the orders passed, but that is not material because Rule 11 gives the Magistrate or the Judge power to suo motu call for additional evidence if he considers it necessary in the interest of justice. In our opinion, the Small Cause Court ought to have suo motu called for additional evidence. As has been stated in the said Civil Application, powers have been delegated by the Municipal Commissioners right since 1961. The Small Cause Courts ought to have enquired and required orders of delegation being placed on record. Section 49 and Section 69 both envisage delegation of powers and it would have been proper exercise of jurisdiction if the Small Cause Courts had demanded leading of such evidence. In any case, this Court has powers under Order 41 Rule 27 to entertain the application. Merely because there has been possible negligence on the part of the Corporation in not producing the orders of delegation before the Small Cause Court should not result in an undue or unjust benefit being given to a tenant and the Corporation being deprived of the tax legitimately due under the Act. This is a case where due to the fault in producing evidence in order to meet a technical objection on the part of the tenants, payment of legitimate tax dues are sought to be avoided. For the negligence of the Corporation's lawyer or its employees, public revenue should not be allowed to suffer and just dues must be paid. To our opinion, the power of the appellate court to allow fresh evidence even at the appellate stage under Order 41, Rule 27 cannot be disputed. The circumstances contained in the said provision are clearly satisfied. In this connection, reference may be made to the case of Billa Jagan Mohan Reddy v. Billa Sanjeeva Reddy, (1994) 4 SCC 659 where it has been observed that :--

"....It is settled law that, if the documents are found to be relevant to decide the real issue in the controversy, and when the court felt that interest of justice requires that the documents may be received, exercising the power under Order 41, Rule 27, CPC the appellate court would receive the documents and consider their effect thereof...."

In the present case, the interest of justice does require the acceptance of the documents, which clearly show that the Officers under whose signature the notices were issued and who passed the orders of assessment and sent the bills were duly empowered to do so. Accordingly, Civil Application No. 2232 of 1994 is allowed.

Gujarat High Court

Municipal Corporation Of The City ... vs Oriental Fire & General Insurance ... on 8 September, 1994

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Whether court can permit the production of additional evidence in Miscellaneous appeal?

  In the case of Rajesh Jaiswal and another Y.S. Anuj Shah and another reported in 2013 (3) ALJ 67, which was also a case arising out of the matter of grant of temporary injunction and an application for additional evidence filed in the Misc. Appeal was rejected, this Court held that Order 43 Rule 2 C.P.C. provides that Order 41 C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order 43 Rule 1. It means that Order 41 Rule 27 C.P.C. can be applied to Misc. Appeals as well and there is no bar in taking new material on record at the appellate stage in the appeal arising out of orders. The appellate court has full authority to accept affidavits/documents in addition to those filed in the court below if necessary for the purposes of deciding the injunction matter subject to certain limitations. Paragraph nos. 5 and 6 of Rajesh Jaiswal case (supra) are being reproduced hereunder:-

"5. Order XLIII. Rule 2. C.P.C. provides that rules of Order XLI, C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order XLIII, Rule 1 including one arising from grant or refusal of interim injunction. It means Order XLI, Rule 27, C.P.C. can be applied to miscellaneous appeals as well and there is no bar in taking new material on record at the appellate stage in appeals arising out of orders. Therefore, also the appellate Court has full authority to accept affidavits/documents in addition to those filed in the Court below, if necessary for the purposes of deciding the injunction matter subject to certain limitations."

"6. In the above legal scenario the appellate Court below is not right in refusing to accept the documents in appeal and erred in refusing them on the ground that the provisions of Order XLI, Rule 27, C.P.C. are not applicable. In view of the above, the impugned order dated 24.9.2012 is unsustainable and is hereby quashed and the Court below is directed to consider the application 15C afresh and to decide the appeal itself in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of production of a certified copy of this order." {Para 46}

47. In the case of Bal Krishna versus Virendra Kumar Misc. Single No. 15947 of 2017, decided on 5/7/2019 this Court considered the Full Bench Judgment in the case of Zila Parishad (supra) and in the case of Rajesh Jaiswal (supra) and held that the additional evidence is permissible to be filed in Misc. Appeal.

Allahabad High Court

Dr. Chandra Deo Tyagi vs Additional District Judge Court ... on 10 July, 2020

Bench: Ravi Nath Tilhari

Read full Judgment here: Click here

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Whether revisional court can take additional evidence in suitable cases?

  Learned counsel for the petitioners Sri H.S. Nigam argued with vehemence that the view of the lower revisional court that in law no additional evidence could be admitted in a revision filed under Section 18 of the Act. is patently erroneous and in support of his argument, learned counsel has relied upon a number of decisions of this Court. Reliance has been placed on the decisions in (1) Lallu Lal Gupta v. IVth Additional District Judge and others, 1979 (UP) RCC 372 ; (2) Bihari Lal v. IInd Additional District Judge, Mathura and others, 1983 (2) ARC 146 ; (3) Smt. Shanti Devi v. District Judge, Farrukhabad and others, 1982 ARC 92 and (4) Radhey Shyam and another v. Additional District Judge, Unnao and others, 1984 (2) ARC 404. In all these decisions, the view taken was that a revisional court in suitable cases is entitled to take additional evidence and while exercising the power of taking additional evidence, the revisonal court has to act on the principles contained in Order XLI. Rule 27, C.P.C.

 A perusal of the impugned order would indicate that petitioners' application for admitting additional evidence on record has been rejected on a number of grounds and it is not correct to say that the said application has been rejected solely on the ground that the revisional court does not possess any power to admit additional evidence while exercising jurisdiction under Section 18 of the Act. It would appear that the revisional court has also held that the petitioners have no right in law to contest the release application or to challenge the order releasing the accommodation in favour of the landlord. In all those cases on which reliance has been placed on behalf of the petitioners, it was held that the additional evidence in revision can be admitted in suitable cases on the principles contained in Order LXI, Rule 27, C.P.C., but before that power could be exercised, it has to be seen by the court that a right vests in the party seeking to bring additional evidence on record.

Allahabad High Court

Suraj Bhan Jain And Another vs Ist Additional District Judge, on 4 September, 1997

Equivalent citations: 1998 (1) AWC 266

Bench: J Gupta

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Whether appellate court can reject application for filing of additional documents at initial stage?

 A perusal of the order passed by the first Appellate Court on 4th November, 2016 on the application filed by the defendant no. 2 under Order 41 Rule 27 indicates that the said application is rejected on the ground that the defendant no. 2 had not exercised due diligence and had not satisfied the conditions prescribed under Order 41 Rule 27 of the Code of Civil Procedure. The fact remains that the Appellate Court rejected the said application at the threshold and not while hearing the appeal filed by the defendant no. 2 finally. The Supreme Court in case of Union of India vs. Ibrahim Uddin and another (supra) has considered this issue and has held that the application filed under Order 41 Rule 27 has to be decided at the stage of final hearing and at that stage, if the Appellate Court comes to the conclusion that the case under Order 41 Rule 27 of Code of Civil Procedure was made out, the appeal court permit the appellant to produce the additional evidence documents. In my view, the order passed by the Appellate Court on 4th November, 2016 rejecting the application filed by the defendant no. 2 under Order 41 Rule 27 at the threshold is contrary to the principles of law laid down by the Supreme Court in case of Union of India vs. Ibrahim Uddin and another (supra) and thus deserves to be set aside.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 267 of 2018 and Civil Application No. 592 of 2018 in Second Appeal No. 267 of 2018

Decided On: 16.08.2019

Rajkumar Chaganlal Shah Vs.  Gunmala Chandrakant Shah and Ors.

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When application for taking additional evidence on record filed at appellate stage should be decided at the time of final hearing of appeal?

 Insofar as the situations relatable to clauses (a) and (aa) are concerned, in our considered opinion, application for production of additional evidence can be filed by the party at any stage of the appeal, even before the stage of final hearing of the appeal. In coming to this view, we have in our minds cogent reasons. The main reason is that the party knows that either with respect to the situation under clause (a) or with respect to a situation under clause (aa), the trial Court erred in not allowing the additional evidence and unless the additional evidence is produced the party's case cannot be properly put across. There is no reason for such a party to wait for the final hearing of the appeal because that would be a sheer wastage of time and the party would be well advised in such a situation to file an application for leading the additional evidence at the initial, rather earliest stage of the appeal itself. There can also be situations where the party understands its case very well and finds that unless the additional evidence is brought on the record the appeal cannot be effectively adjudicated upon. There can be numerous other reasons why a party would genuinely feel convinced about the imperative need of leading additional evidence at the very initial stage of the appeal because the party would be genuinely convinced that unless additional evidence was produced, the appeal by itself, based on the record of the trial Court would be imperfect or incomplete causing prejudice to the interests of the party.

10. In contradistinction to clauses (a) and (aa), as far as clause (b) is concerned, its ambit and scope is quite distinct because the expression "to enable it to pronounce the judgment" occurring in clause (b) clearly suggests that only when the Appellate Court has started hearing of the appeal and in the course of the hearing of the appeal feels that it requires any additional document to be produced or any additional witness to be examined, it may call for additional evidence. Their might be actually situations and cases where even though the appeal Court finds that it would be able to pronounce the Judgment on the basis of the record of the trial Court as it was, it might still consider that in the interests of justice something which remained obscure should be filled up so that it can pronounce the judgment in a more satisfactory manner. The requirement has to be of the Court and the requirement is always to enable the Court to pronounce the judgment for any substantial cause. In either case the requirement has to be of the Court. This is the plain meaning and clear interpretation of clause (b) and based on such interpretation, in our considered view, the legitimate occasion for the exercise of this jurisdiction is not any stage prior to the hearing of the appeal but the stage of the final hearing of the appeal when on examining the evidence as it stands some inherent lacuna or defect became apparent to the Appeal Court. There might be situations where the Appeal Court in the process of examining the evidence while hearing the appeal finds that some omission needs to be supplied and in such a situation it can ask for additional evidence to supply such an omission with a view to enabling it to pronounce the judgment.

14. The Division Bench has held that if an application is filed under clause (a) or (aa), the same has to be decided at any stage of the appeal even before the stage of the final hearing of the appeal and it would be prudent if such an application is decided at earlier stage. However, the Division Bench held that the powers under clause (b) is to be exercised where even though the Appellate Court finds that it would be able to pronounce the judgment on the basis of the record of the trial Court as it was, it might still consider that in the interest of justice something which remained obscure should be filled up, so that it can pronounce the judgment in a more satisfactory manner. It has further been held that the requirement has to be of the Court and the requirement is always to enable the Court to pronounce the judgment or for any substantial cause. It has been further held that the legitimate occasion for the exercise of this jurisdiction is not any stage prior to the hearing of the appeal but the stage of the final hearing of the appeal. We are in respectful agreement with the view taken by the Division Bench of Himachal Pradesh High Court. The requirement under clause (a) or (aa) for leading additional evidence is that of a party where for the reasons in clause (a) or (aa) could not file evidence at the stage of the trial. However, requirement under clause (b) is that of the Court where it finds that additional evidence is required for the purpose of enabling it to pronounce the Judgment or for any other substantial cause. We, therefore, find that the application filed under Order 41, Rule 27(1)(a) or (aa) could be decided at the stage prior to the hearing of the appeal. However, when the Court finds that such an evidence is necessary for pronouncing the judgment or for any other substantial cause, the same has to be done at the stage of pronouncement of the Judgment. No doubt that the learned counsel for the tenant is justified in saying that the learned Single Judge vide order dated 3rd May, 2011 itself had directed that the application for leading additional evidence is to be decided first and thereafter decide the appeal on merits. However, it appears that the learned Single Judge did not find the benefits of going through the Judgment of the Apex Court in the case of Union of India v. Ibrahim (supra) inasmuch as the said Judgment has been delivered on 17th July, 2012 whereas the order was passed by the learned Single Judge in the first round on 3-5-2011. However, in view of the Judgment of the Apex Court in the case of Union of India (supra) we will have to hold that exercise of the jurisdiction by the learned Appellate Court in first deciding the application under Order 41, Rule 27(1)(b) and subsequently deciding the appeal on merits was contrary to the settled principle of law. As such the findings of the learned Appellate Court as well as the learned Single Judge in that regard would not be sustainable.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

L.P.A. Nos. 458 of 2012 and 242 of 2013 in W.P. No. 2808 of 2012

Decided On: 18.01.2014

Hasanate Taheriyyah Fidayyiah Vs.  Mahesh

Hon'ble Judges/Coram:

B.R. Gavai and A.S. Chandurkar, JJ.

Citation: 2014(2) Mh.L.J. 884,

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Whether a party can be permitted to adduce additional evidence at appellate stage if he has not adduced evidence at trial court?

Before considering the merits of the case I would also like to deal with the application No. 8740 of 2007 filed under Order XLI Rule 27of Code of Civil Procedure. No doubt it appears that, before this Court an application was filed when it was first appeal (First Appellate No. 197 of 1983) and the civil application was C.A. No. 587 of 1994, yet it can be seen that even the present application Civil Application No. 8740 of 2007 should be within the parameters of Order XLI Rule 27 of Code of Civil Procedure. A specific issue was framed before the trial Court that, "Does defendant No. 1 prove that by Will dated 10-12-1978 deceased Walibai widow of Bhoja Natha made bequest of the suit properties in her favour?". It can be seen from the Judgment of the learned trial Court and record of the matter that, the learned advocate representing defendant No. 1 passed a pursis at Exhibit 70 stating that, defendant No. 1 does not want to lead evidence on the point of Will. Therefore, even observation was made by the learned trial Court that, though the learned advocate representing the defendant No. 1 has not specifically stated in Exhibit 70, but the pursis indicates that and it was orally addressed by the learned advocate that, defendant No. 1 does not want to claim her title on the basis of Will. If such pursis was specifically passed and thereafter defendant No. 1 did not adduce any evidence, then may be in first appeal or now in second appeal the application under Order XLI Rule 27 cannot be considered at all. The scope of Order XLI Rule 27 is different. Rule 27 of Order XLI provides for, additional evidence to be adduced or received by the appellate Court if the appellant specifies the Court that, after the exercise of due diligence, such evidence was not within his knowledge or could not be produced when the trial Court decided the suit against him. Here the case is totally different. In spite of knowledge of framing of specific issue, of which burden was on her; defendant No. 1 filed pursis at Ex. 70 stating that she does not want to lead any evidence. This act on the part of defendant No. 1 amounts to giving up of claim by her on that point. Original will was in the possession of original defendant No. 1, still when she did not adduce any evidence, with knowledge; then she or her heirs cannot seek any relief by laying hand on Order XLI Rule 27 of Code of Civil Procedure. Therefore, the said application No. 8740 of 2007 deserves to be rejected.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 390 of 2005, 

Decided On: 24.04.2019

 Tejibai Vs.  Mohanlal and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi, J.

Citation: 2019(6) MHLJ 60

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How to decide issue of comparative hardship in eviction suit against tenant?

 To say that the Trustees of the petitioners are also members of the Jamaat and that Jamaat had several other properties, is certainly an irrelevant consideration. As long as, there is no material produced on record, this Trust itself owns any suitable property from where it could start the school, the issue of comparative hardship certainly cannot be decided in favour of the respondents. Besides, in the present case, considering the number of business activities which the respondents carry out through various premises located in Mahabaleshwar itself, the issue of comparative hardship will have to be decided against the respondents. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1997 of 1995, Civil Application Nos. 2274 and 1351 of 2017

Decided On: 21.12.2018

Ranjanwadi Shikshan Trust Vs.  Govind N. Naidu and Ors.

Hon'ble Judges/Coram:

M.S. Sonak, J.

Citation: 2019(4) MHLJ 38,2019(1) RCR 552

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What is necessary condition for adducing additional evidence at appellate stage?

In the first place, the documents sought to be filed by the Respondent, namely, notifications issued under the Act were relevant and also necessary for deciding the rights of the parties involved in the suit/appeal. Second, these documents did not require any proof being public documents in nature. Third, the Respondent had already made reference of these documents and laid foundation in the pleadings and lastly, the first Appellate Court has jurisdiction Under Order 41 Rule 27 of the Code to allow the parties to file additional evidence, if such documents are required to decide the suit/appeal provided satisfactory explanation is given as to why the documents could not be filed in the suit and why they are filed in appeal. The Respondent, in this case, did give the explanation, which found acceptance to the High Court and, in our opinion, rightly.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 4412-4413 of 2018 (Arising out of SLP (C) Nos. 28437-28438 of 2015)

Decided On: 25.04.2018

 Y.P. Sudhanva Reddy Vs. The Chairman and Managing Director, Karnataka Milk Federation and Ors.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation: 2019(1) MHLJ 487

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Whether court should permit production of additional evidence after disposal of appeal?

 Now the question that falls for consideration is whether after closure of a lis, the provision of Order XLI, Rule 27 can be invoked in order to introduce - which, according to the petitioner is - additional evidence. For the purpose of answering this question, we need to have a look at Order XLI, Rule 27 of the Code of Civil Procedure which is set out hereinbelow in its entirety:-

"Production of additional evidence in Appellate Court.- 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) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

5. Even a plain reading of the provision of law - as quoted above - clearly reveals that if the Appellate Court requires any document to be produced or any witness to be examined to enable it to "pronounce judgment" (Emphasis supplied by us) or for any other substantial cause, it may allow such evidence or document to be produced or witness to be examined. In the facts of the instant case, however, "judgment" of the Appellate Court has already been "pronounced" on 18th May, 2018 and even if there was "any substantial cause", such cause was required to be present only when the lis was pending. There is no scope for introduction of additional evidence at this belated stage when no lis is pending. If one has to accept the contention of the petitioner that even at this stage, additional evidence can be introduced before the Appellate Court, it would simply mean that a litigant can be allowed to keep his/her lis pending indefinitely before a Court of law by this process. It will also result in a situation simply unheard of and unacceptable in a modern justice system, i.e., a lis pending in perpetuity. The closure of a lis, therefore, is inevitably warranted and this is what has happened in the facts of the instant case upon pronouncement of the judgment dated 18th May, 2018, leading to the appellate decree. We, therefore, have no manner of doubt whatsoever that at this belated stage, production of additional evidence or allowing witness to be examined in order to prove the petitioner's contentions is impermissible and cannot be allowed. Consequentially, there is no scope for review of our judgment and order dated 18th May, 2018.

IN THE HIGH COURT OF CALCUTTA

RVWO No. 27 of 2018

Decided On: 30.11.2018

Mahavir Properties Pvt. Ltd. Vs. Sri Sri Iswar Gajalakshmi Mata Thakurani and Ors.

Hon'ble Judges/Coram:

Biswanath Somadder and Moushumi Bhattacharya, JJ.

Citation: AIR 2019 Cal 1

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