The J&K&L HC while dealing with a petition under Article 227 of the Constitution accentuated the conditions under which an Appellate Court exercising powers under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as ‘C.P.C’) can permit leading of additional evidence.
The Court was dealing with a case where the Petitioner had filed a civil first appeal before the Appellate Court (Additional District Judge, Jammu) against the judgment and decree of the Trial Court (2nd Additional Munsiff, Jammu). During the pendency of the Appeal, the Petitioner filed an Application under Order 41 Rule 27 C.P.C for leading additional evidence primarily on the ground that the Plaintiff/Respondent did not prove the proper description and location of the land in question being subject matter of the suit, the sale deeds were never proved and exhibited, and that he even failed to get the land in question demarcated by the revenue authorities, claiming thus, additional evidence is necessitated to enable the Appellate Court to pronounce judgment. The Appellate Court dismissed the Application holding that it does not fall within the purview of Order 41 Rule 27 C.P.C. It is this Order of the Appellate Court that came under challenge before the High Court.
The High Court in its consideration of the dispute elaborated the scope of Order 41 Rule 27 CPC and observed that as a general rule, the Appellate Court should not admit additional evidence in appeal and should decide the appeal on the basis of the material on record, that is, the evidence led by the parties before the trial court. However, the Court also noted the exceptional circumstances carved out in Rule 27 in which appellate court can permit leading of additional evidence, that is,
a. the appellate court must be satisfied with the trial court was unjustified in refusing to admit such evidence [Rule 27 Clause (a)]
b. if party, establishes that it was unable to produce such evidence in the trial court in spite of due diligence or best efforts on his part [Rule 27 Clause (aa)]
c. the appellate court may itself require additional evidence (production of document or examination of witness) either for pronouncement of judgment or for any other substantial cause [Rule 27 Clause (b)]
The Court, further, relied upon the judgment of Apex Court in “Mahavir Singh & Ors. Vs Naresh Chandra & Anr.” [2001 (1) SCC 309] to hold, “a mere difficulty in coming to a decision is not sufficient to admit additional evidence.”
The Court differentiated the case at hand with all the grounds enumerated herein-above on which additional evidence could be allowed, noting that, one, the Application nowhere spelt out that the trial court refused to admit evidence which they intended to adduce before it, two, appellants-petitioners nowhere stated therein that the evidence which is sought to be produced was not within their knowledge or could not after the exercise of due diligence produced at the time when the decree/appealed against was passed, and three, having regard to the nature of the suit, it could not be said that the appellate court would itself require the additional evidence either for pronouncement of judgment or for any other substantial cause.
Therefore, the Court while denying interference under Article 227, dismissed the Petition.
