This article has been written by Naveen Talawar, a law student at Karnataka State Law University’s law school. The article deals in detail with Order 41 Rule 27 of the Code of Civil Procedure, 1908, including its scope and provisions related to Rule 27, along with recent cases.

This article has been published by Sneha Mahawar.​​ 

Introduction

What are the circumstances under which additional documents can be admitted into evidence even at the appellate stage? This is an important aspect of procedural law. According to the Civil Procedure Code, 1908 (hereinafter “CPC”) the appellate court has the following powers: to render a final decision; to remand the case; to frame issues and refer them for trial; to take additional evidence or to order the taking of such evidence. Therefore, the court has the authority to take additional evidence at the appellate stage under Section 107(1)(d) of the CPC.

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The general rule is that the appellate court should not look beyond the evidence presented in the lower court’s record and cannot take any additional evidence on appeal. However, Order 41 Rule 27 of the CPC makes an exception that permits the appellate court to take additional evidence in special circumstances. If the conditions outlined in this rule are found to be met, the appellate court may allow additional evidence.

Scope of Order 41 Rule 27 CPC

The scope of Order 41 Rule 27 of the CPC is very clear, as observed in Karnataka Board of Wakf v. Government of India (2004), which states that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that, despite due diligence, they were unable to produce such documents and such documents are necessary to enable the court to render a proper judgment.

The admissibility of additional evidence is not dependent on its relevance to the issue at hand, or on whether the applicant had an opportunity to present such evidence at an earlier stage or not. The true test is whether the appellate court can render judgment on the materials before it without considering the additional evidence sought to be adduced. Such a situation would only occur if the court determined that there was an inherent lacuna in the evidence or some other flaw after reviewing it in its present state. The appellate court is therefore only allowed to admit additional evidence in order to fill a lacuna in the existing evidence. 

If the additional evidence sought to be introduced clears up any remaining questions about the case, has a direct and significant bearing on the central contention of the suit, and is clearly required to be recorded in the interest of justice, the application may be granted.

The appellate court is not entitled under Order 41 Rule 27 CPC to admit new evidence at the appellate stage, where it can render judgment even without such evidence.  It does not entitle the appellate court to admit new evidence solely for the purpose of rendering a particular judgment. Ordinarily, the appellate court should not allow new evidence to be introduced in order for a party to raise a new point of appeal. Similarly, if a party who bears the burden of proving a particular point fails to discharge the burden, he is not entitled to a fresh opportunity to produce evidence because the court can, in such a case, pronounce judgment against him and does not require any additional evidence to do so. The provision does not apply when the appellate court can render a satisfactory judgment based on the evidence on record.

Principles

The basic principle for admitting additional evidence is that the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding. Second, the party affected by the admission of additional evidence should be given an opportunity to rebut it. Thirdly, the additional evidence must be pertinent to the issue at hand.

Conditions 

Order 41 Rule 27, of the Civil Procedure Code of 1908 specifies the conditions under which the court may permit parties to the appeal to present evidence at the appellate stage.

These conditions are: 

  1. If the trial court that rendered the decree refused to accept evidence that should have been accepted, or; 
  2. If the appellant is successful in proving that the evidence in question was not known to him, or; 
  3. If the party appealing is able to prove that, despite his best efforts, he was unable to produce the evidence when the trial court issued the decree being appealed; 
  4. If an appellate court requires a document be produced or a witness be questioned in order to reach a decision, or; 
  5. If the appellate court requests the production of any documents or the cross-examination of any witnesses for any other substantial cause.

Provisions to rule 27

In the case Union of India v. K.V. Lakshman (2016), it was stated that Order 41 Rule 27 of the Code is a provision that enables the party to file additional evidence at the first and second appellate stages. The court should permit the party to file such additional evidence if the party appealing is able to persuade the appellate court that there was a valid reason for not submitting such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties that are the subject of the lis. After all, the court has to provide the parties with substantial justice. The fact that the court permitted one party to submit additional evidence in an appeal does not automatically imply that the court has decided the case in his favour and accepted that evidence. In fact, the appellate court must give the opposing party a chance to file additional evidence as a rébuttal once the additional evidence has been permitted to be included in the record.

The lower court refused to admit the evidence

According to Order 41, clause (1)(a) of Rule 27, the appellate court must determine whether the trial judge erroneously rejected the respondents’ request to have their evidence recorded and, as a result, whether it was appropriate for the appellate court to order the recording of additional evidence.

It was observed in K. Venkataramiah v. Sitaram Reddy (1963) that the occasion for admitting additional evidence under Rule 27 only occurs after the start of the appeal hearing and after a review of the existing evidence when some inherent issues or defects become apparent. Such evidence can only be admitted if the Appellate Court requires it. The court may require it to issue a more satisfactory judgment.

The Supreme Court observed in Shivajirao Patil v. Mahesh Madhav (1986) that the basic principle for admitting additional evidence is that the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding. Second, the party affected by the admission of additional evidence should be given an opportunity to rebut it. Thirdly, the additional evidence must be pertinent to the issue at hand.

Exercise of due diligence

It was observed in State of Karnataka v. KC Subramanya (2013) that a party can seek the liberty to present additional evidence under Order 41, Rule 27(1)(aa), only if the evidence sought to be presented could not be presented at the trial stage despite the exercise of due diligence and that the evidence could not be presented because it was not within his knowledge and therefore fit to be presented by the appellant before the appellate forum.

Discretion to be exercised is limited by the provisions

Under Order 41 Rule 27(1)(b) CPC, the power of the appellate court is limited by the restrictions laid out in the rule’s actual language. To be able to issue the judgment, the court must determine with certainty that it is truly necessary to accept the documents as additional evidence.

In Municipal Corpn. of Greater Bombay v. Lala Pancham (1964), it was stated that the power under clause (b) of Rule 27 cannot be used to supplement the evidence already on record unless one of the grounds listed in the provision is met. If the documents in the file are pertinent to the question of fraud, the court may proceed to consider them and make a decision.

The appellate court’s discretion to receive and admit additional evidence is not arbitrary but is judicially limited by the limitations specified in Order 41 Rule 27, CPC. If the additional evidence is admitted against the rules governing the admission of such evidence, it would be an improper use of discretion, and the additional evidence would have to be disregarded and the case would have to be decided without it. Order 41 Rule 27 states that the appellate court must request the evidence in order to render a decision.

In Natha Singh v. Financial Commr., Taxation, Punjab (1976), it was ruled that the ability of the appellate court to render a decision on the materials at hand without considering the additional evidence sought to be introduced is the true standard to be used when handling applications for additional evidence.

Recording of reasons for admission of additional evidence

The provision requiring an appellate court to record the reason for the admission of additional evidence has been described as advisory and not imperative. The purpose of Rule 27(2) is clearly to keep a clear record of what weighed with the appellate Court in allowing the additional evidence to be produced, whether this was done on the ground, 

  1. that the Court from which the appeal was made had rejected evidence that ought to have been admitted, 
  2. that it had allowed the evidence because it needed it to render judgment on the appeal, or 
  3. that it had allowed it for any other substantial cause.

The recording of the reasons is necessary and helpful to the Court of Further Appeal in determining whether the Appellate Court’s decision was made in accordance with the law when there is a further appeal from the Appellate Court’s decision. Therefore, it is necessary to treat the failure to record the reason as a serious flaw. Even so, the clause is optional, and the High Court’s failure to note the rationale behind its decision to accept additional evidence does not invalidate this admission.

When the application for additional evidence cannot be allowed

In the following circumstances, the application for additional evidence is not allowed:

  1. If more evidence were allowed to be introduced to aid a plaintiff to establish a new case in an appeal, there would be no end to the legal dispute. Instead, cases should not be remanded to give parties the opportunity to establish new claims or to strengthen existing ones by calling additional evidence.
  2. Additional evidence is not allowed when there is no compelling reason to do so and no attempt is made to present any evidence in any court up to and including the Supreme Court until the hearing is over.
  3. It is not acceptable to introduce new evidence to fill in gaps or restore weak areas in the case.
  4. An appeal for amendment of the written statement introducing a new case and adducing additional evidence will be denied. 
  5. Despite due diligence, documents were beyond the control of the party and should not have been allowed because the appellant’s objection in the application was not stated.

Recent cases

In Sri Gopal Krushna Panda v. Manager (2019), the issue of whether the appellate court can take into account the application filed under Order 41 Rule 27 CPC for admitting additional evidence before hearing the appeal was taken into consideration. The Court cited an earlier ruling in Sankar Pradhan v. Premananda Pradhan (dead) and Others, (2015), in which it was stated that under clause (1)(b) of Rule 27, additional evidence can only be admitted where the appellate court “requires” it (i.e., finds it necessary). 

The court noted that the application for additional evidence can be taken into consideration at the time of the hearing on the appeal. The court must make the request, regardless of whether it is necessary for the court to be able to issue a judgment or for any other substantial cause.  Wherever the Court follows this procedure, Rule 27(2) requires it to record its reasonings.

In Sanjay Kumar Singh v. the State of Jharkhand (2022), it was observed that where the additional evidence sought to be adduced removes the question mark hanging over the case, the evidence has a direct and significant bearing on the suit’s main issue, and the interest of justice clearly necessitates its admission to the record, such an application may be granted. Whether the appellate court needs the additional evidence to enable it to issue a judgment or for any other significant reason of a similar nature is one of the circumstances in which the production of additional evidence by the appellate court is to be taken into consideration under Order 41 Rule 27 CPC.

Conclusion 

As a general rule, the appellate court should not admit additional evidence in order to decide an appeal, and the parties are not permitted to present additional evidence, whether oral or documentary, in the appellate court. The Code of Civil Procedure, 1908, however, under Order 41 Rule 27 of the CPC, gives an appellate court the authority to take additional evidence subject to certain conditions; a fortiori, the power is discretionary and must be exercised on sound judicial principles.

References

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