IMPORTANT POINT
When first appellate Court found additional evidence was not required and rejected application under Order XLI, Rule 27, High Court was not justified in allowing application in proceedings under Section 115 C.P.C.

Headnote:(i) Code of Civil Procedure, 1908 - Section 107 read with Order XLI, Rule 27-Additional evidence at appellate stage-Scope of powers of appellate Court-High Court s jurisdiction to interfere with order of appellate Court under Order XLI, Rule 27-Admission of additional evidence entirely discretionary-Discretion to be exercised judiciously and sparingly -When first appellate Court did not find necessity to allow application High Court should not in terfere with such order in proceeding under Section 115 as if deciding original application.
       Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27 CPC. Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the Court, which is, of course, to be exercised judiciously and sparingly. (Para 5)
       When the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence. But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires", which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply. It is under these circumstances such a power could be exercised. (Para 5)
       Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. (Para 5)
       (ii) Code of Civil Procedure, 1905 -Order XLI, Rule 27 read with Section 115-Additional evidence at appellate stage-High Court s power to interfere with order of first appellate Court s order-Additional evidence in form of examination of original agreement, with copy lodged with IT Department for clearance for sale, by Forensic Science Laboratory -In suit original agreement found to be interpolated according to handwriting and finger print expert-Rejection of application by first appellate Court- High Court allowing application stating that scientific equipment was not available earlier-Not justified-When first appellate Court found additional evidence not required High Court right not to have interfered with order-Merely because document had already been sent to FSL and opinion had been received during pendency of appeal additional evidence cannot be permitted. (Paras 5 & 6)

JUDGMENT

Rajendra Babu, J.-Leave granted.

2. This appeal arises out of an order made by the High Court in a revision petition filed under Section 115 of the Code of Civil Procedure, 1908 by which it allowed an application filed by the respondents-plaintiffs under Order XLI, Rule 27 read with Section 151 CPC by setting aside the order dated 24-12-1999 passed by the learned District Judge, Gurgaon, refusing to permit the respondents-plaintiffs to adduce additional evidence by the said application. The respondent-plaintiffs filed a suit for (i) specific performance of the agreement to sell dated 30-1-1995, (ii) delivery of vacant possession and (iii) a declaration that the defendant No. 1 was an absolute owner of the land measuring 102 kanals and 14 marlas as described in the plaint. In pursuance of the said agreement, it is alleged that the defendants submitted on 7-2-1995 an application to the Income Tax Department for obtaining clearance for sale of the said land which was signed by the plaintiff No. 1 and defendant No. 1 along with certain other documents attached thereto. After trial, the trial Court dismissed the suit against which a regular appeal was filed. In the course of the trial the original agreement of sale produced before the court was sent for scientific examination PW-8, Ashok Kashyap, who is stated to be Hand-Writing and Finger Prints Expert, deposed that he had examined the original agreement to sell dated 30-1-1995 and found evidence of interpolation at pages 2 and 3. In the appeal filed before the learned District Judge, an application under Order XLI, Rule 27 CPC read with Section 151 CPC is filed by the respondents to adduce additional evidence. The contention put forth in the appellate court is that the original agreement for sale and the copy of agreement produced before Income Tax Department should be examined by Forensic Science Laboratory, Government of N.C.T., Delhi or by any other Government Forensic Science Laboratory having sufficient instruments or apparatus for detection of erasyers thereby asking the Court to make detailed inquiry as to whether the said facilities are available in any laboratory and then to send the documents to such laboratory. The appellate court dismissed the said application by the order made on 24.12.1999. Being aggrieved by that order, a revision petition was preferred before the High Court, as stated earlier.

3. It is unfortunate that the appellant made a representation to the Chief Justice of the High Court to list the case before another Judge in the circumstances set forth in the representation and a copy of which was also sent to the learned Judge. However, it appears that this aspect does not seem to have been pursued with and the same learned Judge before whom the matter was listed heard the matter and decided the same. These allegations have been reiterated in the course of the special leave petition. Preliminary objection is raised by the respondents to the effect that the case came up for hearing in the High Court on 28-3-2000 and 25-4-2000, while the representation had been made on 23-3-2000 but not brought to the notice of the learned Judge nor any objection to this effect during the course of the hearing of the matter by the learned Judge was raised before him before the arguments were concluded and, therefore, reiteration of those apprehensions in the course of the special leave petition will tantamount to making allegations against the learned Judge of the High Court which are uncalled for and this Court should not entertain the special leave petition at all in view of the conduct of the appellant. We have given our anxious consideration to this aspect of the matter. Though certain apprehensions have been expressed by the appellant as to the appropriateness of the hearing of the matter by the learned Judge whose order is under appeal before us, the same has not been pursued with either before the same learned Judge or before the learned Chief Justice of the

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2000 Supreme(SC) 1759

IMPORTANT POINTWhen first appellate Court found additional evidence was not required and rejected application under Order XLI, Rule 27, High Court was not justified in allowing application in proceedings under Section 115 C.P.C.

Cases Referred (4)

IMPORTANT POINT
When first appellate Court found additional evidence was not required and rejected application under Order XLI, Rule 27, High Court was not justified in allowing application in proceedings under Section 115 C.P.C.