Additional Evidence in First Appeal: Original Documents, Subsequent Events, and the Limits of Remand

Q :-  Documents were not produced before trial court as those documents were not traceable and were not exhibited as xerox copies were filed. whether any party can produce original documents before appellate court? whether appellate court can allow production of original documents at appellate stage only on the ground that those documents were not traceable at the time of proceeding before trial court?

Ans:- First appeals often raise a recurring procedural problem: can a party produce documents for the first time in appeal, especially when the originals were not filed before the trial court? The answer is yes, but only in limited circumstances, because additional evidence in appeal is an exception and not a matter of right.

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The Supreme Court's Definitive Ruling on Video Evidence Admissibility: Kailash vs. State of Maharashtra Sets New Standards for Digital Evidence in Criminal Trial

 

The Supreme Court's recent judgment in Kailash S/o Bajirao Pawar vs. State of Maharashtra (2025 INSC 1117) has delivered a landmark clarification on the admissibility of video recordings in criminal proceedings, setting crucial precedents for how courts should handle electronic evidence under the Indian Evidence Act, 1872. This decision, delivered by Justices Manoj Misra and Ujjal Bhuyan on September 15, 2025, fundamentally reshapes the legal landscape surrounding digital evidence while reinforcing the exceptional nature of re-trial orders in criminal cases.

Read full judgment here: click here

The Case Background: NDPS Raid and Video Documentation

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Supreme Court: Not Required To Play Video Evidence Before Witness Or Transcribe Its Contents For Admissibility

As far as admissibility of video recording i.e., Compact Disc (CD) is concerned, the author of the video i.e., SW No. 2 not only deposed that he recorded the video, but he also gave a certificate, as contemplated Under Sub-section (4) of Section 65B of the Evidence Act, to make the CD admissible in evidence. Interestingly, the High Court did not dispute that the electronic record was duly exhibited as there existed a certificate envisaged Under Sub-section (4) of Section 65B. However, strangely, the High Court opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video. In our view, this is a strange and unacceptable reasoning for the simple reason that the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s). No doubt, there may be an occasion where to appreciate contents of a video an explanatory statement may be needed, but that would depend on the facts of a case. However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video. Besides that, in the instant case, the search and seizure operation was sought to be proved by oral evidence of witnesses. The video, therefore, was perhaps to corroborate the oral testimony. Even the judgment of the trial court makes it clear that the video was played in court in the presence of all Accused as well as both sides counsels and the presiding officer, upon seeing the video, could spot and confirm the presence of witnesses as well as the Accused at the time of search and seizure. In such circumstances, in our view, a re-trial is not required only to explain the video. {Para 19}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4041 of 2025 (Arising out of SLP (Criminal) No. 4646 of 2025)

Decided On: 15.09.2025

Kailas Vs. The State of Maharashtra

Hon'ble Judges/Coram:

Manoj Misra and Ujjal Bhuyan, JJ.

Author: Manoj Misra, J.

Citation: 2025 INSC 1117,MANU/SC/1283/2025

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Can the appellate court permit the production of additional evidence at a belated stage that would result in a retrial of the accused or a change in the nature of the case against the accused?

4(i) Section 391 Cr.P.C gives out power to the Appellate Court to take further evidence in following manner:-

“391. Appellate Court may take further evidence or direct it to be taken-(1) In dealing with any appeal under this Chapter, the

Appellate Court, if it thinks additional evidence to be necessary,

shall record its reasons and may either take such evidence itself,

or direct it to be taken a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.

4(ii) In (2019) 16 SCC 712 [Brigadier Sukhjeet Singh

(Retired) MVC Vs. State of Uttar Pradesh & Ors], the Hon’ble Apex

Court held that the key words in Section 391(1) are “if it thinks

additional evidence to be necessary”. The word “necessary” used in

Section 391(1) is to mean necessary for deciding the appeal. Power

to take additional evidence under Section 391 Cr.P.C. is with the

object of appropriate decision of the appeal by the appellate Court to

secure ends of justice. The Hon’ble Apex Court noted the decision

rendered in (2001) 4 SCC 759 (Rambhau Vs. State of

Maharashtra), wherein a word of caution was introduced for

guidance “that additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a re-trial or to change the nature of the caseagainst the accused. The order for adducing additional evidence must not ordinarily be made, if the prosecution has had a fair opportunity and has not availed of it. It was further held that there is no fetter on the power under Section 391 Cr.P.C of the Appellate Court. All powers are conferred on the Court to secure the ends of justice. While allowing the application moved under Section 391 Cr.P.C. by the accused in that case, Hon’ble Apex Court further held that it depends on facts of each and every case to come to a conclusion as to whether it is necessary to take additional evidence or not. It would also be apt to refer 2019(3) SLC 1354 (Jagdeep Kumar Vs. Himachal Pradesh State Cooperative BankLimited), wherein observations were made that Section 391 Cr.P.C. is not intended to remedy the negligence or laches of the party.

IN THE HIGH COURT OF HIMACHAL PRADESH,

SHIMLA

Cr.MMO No. 73/2023

Decided on: 11.04.2023

Kewal Krishan  Vs   State of H.P. & Ors.

Coram

Hon’ble Ms. Justice Jyotsna Rewal Dua, Judge.

Citation: 2023 Lawweb (HP ) 2.

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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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Whether the court can permit parties to amend their pleadings at the stage of first and second appeal?

 One cannot dispute that in appropriate cases, the parties are permitted to amend their pleadings at any stage not only during the pendency of the trial but also at the first and second appellate stage with the leave of the Court provided the amendment proposed is bona fide, relevant and necessary for deciding the rights of the parties involved in the lis.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2343-2344 of 2017

Decided On: 10.02.2017

Chakreshwari Construction Pvt. Ltd.Vs. Manohar Lal

Hon'ble Judges/Coram:

Jasti Chelameswar and Abhay Manohar Sapre, JJ.

Citation: 2017(5) MHLJ 195,(2017) 5 SCC 212.

Read full Judgment here: Click here

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Supreme Court: Important factors which the court should consider while deciding application for amendment of pleading

 On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive. {Para 63}

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2343-2344 of 2017

Decided On: 10.02.2017

Chakreshwari Construction Pvt. Ltd.Vs. Manohar Lal

Hon'ble Judges/Coram:

Jasti Chelameswar and Abhay Manohar Sapre, JJ.

Citation: 2017(5) MHLJ 195,(2017) 5 SCC 212

Read full Judgment here: Click here

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Whether Appellate court should liberally permit recording of additional evidence in Criminal appeal?

 It is therefore seen that the powers under section 391 of

the Code to take additional evidence by the appellate court are

of a discretionary nature and are to be exercised sparingly and

only in suitable cases. The powers under the section have been

held akin to those under Order XLI Rule 27 of the Code of

Civil Procedure, 1908 and in view thereof additional evidence

cannot be tendered at the appellate stage as a matter of right

and the power to be exercised by the appellate court is to be

based on discretion, sound judicial principles and in the

interest of justice. The discretion is to be exercised in suitable

cases and not to fill up gaps and lacunae in the evidence. The

recording of reasons by the appellate court for taking the

additional evidence has been made mandatory with the

salutary objective of operating as a check against a too easy

reception of evidence at a later stage of the litigation. The test

to be applied is as to whether the evidence sought to advanced

is essential for a just decision of the case. {Para 12}

 ALLAHABAD HIGH COURT

Case :APPLICATION U/S 482 No. 8420 of 2021

Ramdas Tureha Vs State of U.P. 

Author: Hon'ble Dr. Yogendra Kumar Srivastava,J.

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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 direct the trial court to dispose of suit on merit after it has allowed the application for production of additional evidence?

When an application for adducing additional evidence is allowed the appellate court has two options open to it. It may record the evidence itself or it may direct the trial court to do so. Order XLI Rule 28 of the CPC reads as under:

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.

10. For the aforementioned purpose, in our considered opinion, the High Court could not have directed the trial court to dispose of the suit after taking evidence. Such an order of remand could be only in terms of Order XLI Rule 23, Order XLI Rule 23A or Order XLI Rule 25 of the Code. None of the said provisions have any application in the instant case.

11. This Court in Shanti Devi and Ors. v. Daropti Devi and Ors. MANU/SC/8790/2006 : (2006) 13 SCC 775 has held as under:

But the same by itself could not be a ground for remitting the entire suit to the learned trial judge upon setting aside the decree of the learned trial court. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5201 of 2009 

Decided On: 03.08.2009

 H.P. Vedavyasachar Vs.  Shivashankara and Ors.

Hon'ble Judges/Coram:

S.B. Sinha and Mukundakam Sharma, JJ.

Citation: (2009) 8 SCC 231, AIR 2010 SC (Supp) 394

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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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Supreme Court: Court should permit recording of evidence in proceeding U/S 34 of Arbitration Act in exceptional circumstances

 Based upon Justice B.N. Srikrishna Committee’s report,

Section 34 of the Principal Act has been amended by

Arbitration and Conciliation (Amendment) Act, 2019 as under:-

“7. Amendment of Section 34.—In Section 34 of the principal

Act, in sub-section (2), in clause (a), for the words “furnishes

proof that”, the words “establishes on the basis of the record

of the Arbitral Tribunal that” shall be substituted.”

17. After referring to Justice B.N. Srikrishna Committee’s

report and other judgments and observing that the decision in

Fiza Developers must be read in the light of the amendment

made in Section 34(5) and Section 34(6) of the Act and

amendment to Section 34 of the Arbitration Act, 1996, in Emkay

Global Financial Services Limited v. Girdhar Sondhi (2018) 9

SCC 49, it was held as under:-

“21. It will thus be seen that speedy resolution of arbitral

disputes has been the reason for enacting the 1996 Act, and

continues to be the reason for adding amendments to the said

Act to strengthen the aforesaid object. Quite obviously, if issues

are to be framed and oral evidence taken in a summary

proceeding under Section 34, this object will be defeated. It is

also on the cards that if Bill No. 100 of 2018 is passed, then

evidence at the stage of a Section 34 application will be

dispensed with altogether. Given the current state of the law, we

are of the view that the two early Delhi High Court judgments in

Sandeep Kumar v. Ashok Hans 2004 SCC OnLine Del 106, Sial

Bioenergie v. SBEC Systems 2004 SCC OnLine Del 863, cited

by us hereinabove, correctly reflect the position in law as to

furnishing proof under Section 34(2)(a). So does the Calcutta

High Court judgment in WEB Techniques and Net Solutions (P)

Ltd. v. Gati Ltd. 2012 SCC OnLine Cal 4271. We may hasten to

add that if the procedure followed by the Punjab and Haryana

High Court judgment in Punjab SIDC Ltd. v. Sunil K. Kansal 2012

SCC Online P&H 19641 is to be adhered to, the time-limit of one

year would only be observed in most cases in the breach. We

therefore overrule the said decision. We are constrained to

observe that Fiza Developers was a step in the right direction as

its ultimate ratio is that issues need not be struck at the stage of

hearing a Section 34 application, which is a summary procedure.

However, this judgment must now be read in the light of the

amendment made in Sections 34(5) and 34(6). So read, we

clarify the legal position by stating that an application for setting

aside an arbitral award will not ordinarily require anything beyond

the record that was before the arbitrator. However, if there are

matters not contained in such record, and are relevant to the

determination of issues arising under Section 34(2)( a ), they may

be brought to the notice of the Court by way of affidavits filed by

both parties. Cross-examination of persons swearing to the

affidavits should not be allowed unless absolutely necessary, as

the truth will emerge on a reading of the affidavits filed by both

parties. We, therefore, set aside the judgment in Girdhar Sondhi

v. Emkay Global Financial Services Ltd. 2017 SCC OnLine Del

12758 of the Delhi High Court and reinstate that of the learned

Additional District Judge dated 22-9-2016. The appeal is

accordingly allowed with no order as to costs.”

The legal position is thus clarified that Section 34 application

will not ordinarily require anything beyond the record that was

before the arbitrator and that cross-examination of persons

swearing in to the affidavits should not be allowed unless

absolutely necessary.

18. The question falling for consideration is whether the

present case is such an exceptional circumstance that it was

necessary to grant opportunity to respondent Nos.1 and 2 to file

affidavits and to cross-examine the witnesses is made out. The

affidavit filed by the respondents along with application filed

under Section 151 CPC does not indicate as to what point the

first respondent intends to adduce except stating that the first

respondent intends to adduce additional evidence relating to

the subject of dispute. The affidavit does not disclose specific

documents or evidence required to be produced except stating

that the first respondent intends to adduce additional evidence

or otherwise the first respondent will be subjected to hardship in

the arbitration suit filed by her under Section 34 of the Act. As

rightly contended by the learned counsel appearing for the

appellant that there are no specific averments in the affidavit as

to the necessity and relevance of the additional evidence

sought to be adduced.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7544-7545 OF 2019

M/S. CANARA NIDHI LIMITED  Vs M. SHASHIKALA A

R. BANUMATHI, J.

Dated:September 23, 2019

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Whether appellate or revisional authority can allow production of additional evidence?

 The expression "pass such order as it thinks fit" is not restricted to the passing of orders which are final in character. If for the purposes of doing complete justice between the parties, the authority who hears the revision petition is satisfied that it is necessary to call for additional evidence, he may call for such evidence. There is no bar in the Act or the rules against an appellate or the revising authority taking into consideration additional evidence brought on the record, if the authority requires additional evidence to be brought on the record or allows it to be brought on the record to do complete justice between the parties. The evidence must undoubtedly be disclosed to the parties and they must be given an opportunity to meet an inference that may arise from such additional evidence. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1943 of 1967

Decided On: 26.02.1968

Arbind Kumar Singh Vs. Nand Kishore Prasad and Ors.

Hon'ble Judges/Coram:

G.K. Mitter, J.C. Shah and V. Ramaswami, JJ.

Citations: AIR 1968 SC 1227, 1968 SCR (3) 322

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When husband is not entitled to produce Audio CD as additional Evidence in Divorce proceeding?

Careful perusal of the application having been filed by the husband, seeking therein permission to lead additional evidence, clearly suggests that by way of additional evidence husband intended to prove factum with regard to threats extended to him and his family members by the father of the wife, which fact was very much in his knowledge at the time of filing replication. Careful perusal of cross-examination conducted upon the wife witnesses, nowhere reveals that suggestion, if any, was ever put to the wife with regard to existence of audio CD or recording of the conversation qua the meeting held at Shimla. No doubt, wife in his examination-in-chief or cross-examination has admitted the factum with regard to meeting held at Shimla, but there appears to be no attempt on the part of the husband to put a suggestion to wife that during meeting at Shimla he and his family members were threatened and he was in possession of the CD, which omission on the part of the husband certainly compels this Court to agree with Mr. Anuj Nag, learned counsel representing the petitioner-wife that application having been filed by the husband at the time of arguments is an afterthought merely to fill up the lacuna. Husband by way of placing audio CD on record wants to prove misbehave of father of wife and statement given by wife at one point of time, but interestingly, no such suggestion came to be put to her in her cross-examination, rather such suggestion came to be put to RW-2 in her cross-examination i.e. mother of the wife, which in my mind could not be of any help.

8. Leaving everything aside, once pleadings adduced on record by the husband itself suggest that audio CD sought to be produced on record by way of additional evidence was very much in existence before commencement of trial or cross-examination of wife or her family member, learned Court below ought not to have allowed the application having been filed by the husband, seeking therein permission to lead additional evidence that too at the stage of arguments because it would amount to filling up of lacuna.

9. Basic purpose of Rule 17 is to enable the Court to clarify any position or doubt. While exercising power Under Order 18 Rule 17-A CPC, Court may, either suo motu or on the request of any party, recall any witness at any stage in this regard. No doubt, power can be exercised at any stage, once the Court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the Court. The power under Rule 17 cannot be stretched any further, however said power cannot be invoked to fill up omission in the evidence already led by a witness.

10. In this regard, reliance is placed upon the judgment rendered by Hon'ble Apex Court in Ram Rati versus Mange Ram(Dead) through legal representatives and others, MANU/SC/0260/2016 : 2016(11) Supreme Court Cases 296, wherein it has been held as under:-

"11. The respondent filed the application under Rule 17 read with Section 151 CPC invoking the inherent powers to the court to make orders for the ends of justice or to prevent abuse of the process of the Court. The basic purpose of Rule 17 is to enable the court to clarify any position or doubt, and the court may, either such motu or on the request of any party, recall any witness at any stage in that regard. This power can be exercised at any stage of the suit. No doubt, once the court recalls the witness for the purpose of any such clarification, the court may permit the parties to assist the court by examining the witness for the purpose of clarification required or permitted by the court. The Power under Rule 17 cannot be stretched any further. The said power cannot be invoked to fill up omission in the evidence already led by a witness. It cannot also be used for the purpose of filling up a lacuna in the evidence. "No prejudice is caused to either party" is also not a permissible ground to invoke Rule 17. No doubt, it is a discretionary power of the Court but to be used only sparingly, and in case, the court decides to invoke the provision, it should also see that the trial is not unnecessarily protracted on that ground."

11. It is quite apparent from the aforesaid exposition of law that though it is discretionary power of Court to allow parties to adduce on record additional evidence at any stage of the trial, but such power is required to be used sparingly so that it is not abused. The Hon'ble Apex Court has specifically held that in case Court decides to invoke this provision, it should see that the trial is not unnecessarily protracted on that ground. In the judgment (supra) Hon'ble Apex Court has held that "no prejudice is caused to either party is also not a permissible ground to invoke Rule 17 and as such, there is no force in the arguments of learned counsel representing the husband that no prejudice would be caused in case order passed by the District Judge is allowed to sustain, rather it would help to ascertain the truth. This Court finds from the record that matter is repeatedly being adjourned on one pretext or the other on the request of learned counsel representing the parties. Hence, this Court having taken note of the fact that since factum with regard to existence of audio CD sought to be adduced on record as additional evidence was very much in the knowledge of the husband before commencement of trial and at the time of leading evidence, has no hesitation to conclude that application filed under Order 18 Rule 17-A CPC is nothing, but an attempt to protract the trial and as such, same deserves to be dismissed.

12. Consequently, in view of the discussion made hereinabove, the present petition is allowed and impugned order dated 17.07.2017, passed by the learned Court below is quashed and set-aside.

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMPMO No. 330 of 2017

Decided On: 21.12.2018

 Honey Johar Vs. Ramnik Singh Johar

Hon'ble Judges/Coram:

Sandeep Sharma, J.

Citation: AIR 2019 HP 39

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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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When it is permissible for court to allow production of additional evidence at belated stage in cheque dishonour case?

The appellant filed Criminal Application Nos. 203 of 2018 and 256 of 2018 under Sections 311 read with 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking permission to place on record documents and for permission to lead further evidence and to call and examine Inspector from the Department of Shops and Establishment. The said applications moved on behalf of the appellant cannot be permitted at this stage. The reliance placed on behalf of the appellant on the judgment of the Hon'ble Supreme Court in the case of Ashok Tshering Bhutia .vs. State of Sikkim- MANU/SC/0156/2011 : (2011) 4 Supreme Court Cases 402 in this regard, is also misplaced. In the said judgment, the Hon'ble Supreme Court has laid down that additional evidence at belated stage is permissible in case of failure of justice. But, it is further laid down that such power is to be exercised sparingly and only in exceptional cases where the Court is satisfied that permitting additional evidence would serve the interest of justice. It is laid down that it would depend upon the facts and circumstances of the individual case as to whether such permission was to be granted and further that it should be generally invoked when formal proof for the prosecution is necessary. The said position of law does not favour the appellant in the present case at all. These applications are clearly an afterthought and a feeble attempt to support the contentions raised on behalf of the appellant. The said applications pertain to an attempt on the part of the appellant to prove that that the said Rajiv Shivji Sharma was indeed the Proprietor of the appellant. This is an attempt to demonstrate that the complaint was filed by an authorised person. The appellant has failed to make out a case for adducing additional evidence at this stage. Even otherwise, this Court has found that on merits the appellant has absolutely no case. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Application (APPA) No. 406/2016 in Criminal Appeal No. 479/2018

Decided On: 31.07.2018

Century Steel Traders Vs. Polaris Steel Castings Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:

Manish Pitale, J.

Citation: 2019(1) MHLJ 303

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Whether appellate court can decree suit considering additional evidence without giving opportunity to other side to lead rebuttal evidence?

 First, it took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the Appellants herein (who were Respondents in the first appeals) to file any rebuttal evidence to counter the additional evidence adduced by the Respondents (Appellants before the first Appellate Court). This caused prejudice to the Appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the Respondents for the first time in appeal against them. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3033 of 2006, Civil Appeal No. 8185 of 2018 (Arising out of S.L.P. (C) No. 21796 of 2018) and (D. No. 15579/2017)

Decided On: 10.08.2018

 The Corporation of Madras.  Vs. M. Parthasarathy and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and S. Abdul Nazeer, JJ.

Citation: AIR 2018 SC 3777.

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Whether appellate court can allow production of additional evidence on ground that party should not suffer for mistake of his Advocate?

 Order XLI Rule 27 CPC allows for the production of additional evidence in the appellate Court and reads thus:

(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.

In other words, it was incumbent on the respondents to show that his case fell within clause (a) or clause (aa) or that the said document was required by the appellate Court to enable it to pronounce the judgment.

8. The learned first appellate Court threw caution to the winds and on a specious plea that the parties should not suffer the mistake committed by their advocate allowed the production of the document in appeal which was contrary to the requirements thereof. 

It held that 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.

No doubt the Apex Court had relied in Union of India V/s. Ibrahim Uddin & Anr. [MANU/SC/0561/2012 : (2012) 8 SCC 148], where it was held at para 49 thus:

"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 into consideration the additional evidence sought to be adduced.............."

IN THE HIGH COURT OF BOMBAY AT GOA

Appeal From Order No. 12 of 2011 and Cross Objection No. 2 of 2012

Decided On: 11.06.2018

Shrikrishna Vasudev Patil  Vs.  Baburao Vasudev Patil and Ors.

Hon'ble Judges/Coram:

Nutan D. Sardessai, J.

Citation: 2018(5) MHLJ 791

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