2006 Supreme(Kar) 991

Karnataka High Court
GABRIEL BHASKARAPPA KURI - Appellant
Versus
UNITED BASEL MISSION CHURCH IN INDIA TRUST ASSOCIATION, GADAG - Respondent
Decided On : 12-13-06
Miscellaneous First Appeal No. 205 of 2006.

Headnote:Code of Civil Procedure, 1908 - Order 41 Rule 27 - Delay in justice dispensation system - Suit filed in 1990 - Decreed in 1994 - Appealed in 1994 and disposed of in 2006 - Application for production of additional evidence - Allowed by appellate court and hence remanded matter to trial court - All this happening after sixteen years of institution of suit - Held, not proper and impugned order of appellate court hence cannot be sustained. [N. Kumar, J.]: It is because of these solitary cases the entire judicial system is ridiculed. The lower Appellate Court if only had looked into these provisions and was conscious of the criticisms levelled against the judiciary, it would not have remanded the matter to the Trial Court as it has done. Even if those documents are relevant, as the documents sought to be produced are judgments and decrees passed by various Courts, they could have been marked by Consent and they could have been looked into and a judgment could have been passed on merits. Even if parties wanted opportunity to lead oral evidence, the first Appellate Court had jurisdiction to record oral evidence by itself and decide the appeal on merits with that additional evidence on record. Instead of resorting to these settled legal procedures as contemplated under Order 41 Rules 27, 28 and 29, the learned Judge has short circuited the whole process, which the lower Appellate Courts should avoid.

       Practice and Procedure - Production of additional evidence in appellate court - Admission of - Procedure to be followed by court. See, Code of Civil Procedure, 1908 - Order 41 Rule 27.

       Code of Civil Procedure, 1908 - Order 41, Rule 27 - Production of additional evidence in appellate court - Admission of - Procedure to be followed by court. [N. Kumar, J.]: Once the Court decides to admit additional evidence, then the Court shall record the reasons for its admission. Thereafter it shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified as required under rule 29. The appellate Court should remember, merely because it decides to admit additional evidence under this Rule, it should not set aside the judgment and decree of the Trial Court and remand the case to the lower Court, unless it falls within Rule 23. 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 to the Appellate Court. This is the requirement of law as contained in Rule 28. On receipt of such material, after hearing the parties, the appellate Court shall pronounce the judgment on merits. The scheme of these provisions do not provide for setting aside a well considered judgment and decree of the Trial Court solely on the ground that the application filed for additional evidence is allowed.

       Code of Civil Procedure, 1908 - Order 41, Rule 27 - Production of additional evidence in appellate court - Permissibility - In view of opening words of the provision couched in negative form, if permissible - Exception to bar erected under -Exercise of power by Court - Scope. [N. Kumar, J.]: The production of additional evidence in appellate Court has to be strictly construed. This power so conferred upon the Court by the Code ought to be very sparingly exercised. While exercising such power it is necessary for the Appellate Courts to keep in mind the amendment to the Code of Civil Procedure brought about in the year 2002. Now, even in the Trial Court the parties have to produce the documents on which they rely on, for their claim or the defence along with the pleadings. Thereafter documents shall not, without the leave of the Court be received in evidence at the hearing of the suit. Further, the Court mandates under Order 13 Rule 1 that all the documents shall be produced on or before the settlement of issues. If anything remains to be produced, they have to be produced along with the affidavit which is by way of examination in chief. Therefore, the concept of showing a good cause for not producing the documents earlier has been given a complete go by. Unless the document is relevant to the matter in issue, without the leave of the Court, the same cannot be produced, once the opportunity to produce the same is not availed of by the parties. In that context when production of documents at a later stage in the suit itself is very much restricted, in appeal it cannot be allowed as a matter of course even though these provisions are not amended by the said Amendment Act. Unless the party makes out a case as contemplated under Order 41 Rule 27 CPC the Court cannot admit documents. While exercising such power, the Court shall comply with the requirement of law as contained in sub-rule (2) of Rule 27 and Rule 29.

       Code of Civil Procedure, 1908 - Order 41 Rule 27 - Production of additional evidence in appellate court - Circumstances under which additional evidence can be produced. [N. Kumar, J.]: (1) When the trial Court refused to admit evidence, which ought to have been admitted. (2) Notwithstanding the exercise of due diligence, such evidence was not within his knowledge. (3) Even after the exercise of due diligence, such evidence could not be produced. (4) Appellate Court requires any evidence to enable it to pronounce judgment. (5) Any other substantial cause.