The admissibility of additional evidence at the stage of appeal, particularly evidence based on subsequent events, is determined based on whether it helps the court to determine the facts in issue in the interest of justice.

I. P. Mukerji, J.

Re. CAN 8245 of 2016

This is an application by the respondent/husband under Order 41, Rule 27 of the Code of Civil Procedure. He wants to adduce additional evidence at the stage of this appeal. It is submitted on behalf of the respondent/applicant that a decree for dissolution of the marriage was passed by the court on 17th June, 2009. Many years after that, on 31st July, 2013, a 498A petition filed by the appellant/wife was finally decided by the criminal court acquitting the respondent/husband. He wants to adduce this judgment and decree as evidence on his behalf in the appeal. Furthermore, it is submitted that by an order dated 30th April, 2011 by the court below permanent custody of the daughter was granted to the father.

2. Mr. Bhattacharya, learned counsel for the appellant/wife submits that his client has preferred an appeal from that order which is pending in this court.

3. However, Mr. Rwitendra Banerjee for the respondent/husband wants to adduce evidence of the judgment and decree granting permanent custody to the husband.

4. Order 41, Rule 27 (aa) in our opinion relates to evidence, which the parties wish to adduce at the stage of appeal in existence at the time of the trial but not available to a party in-spite of his due diligence. The evidence which the respondent/husband wants to produce is more in the nature of additional evidence on the basis of subsequent events Order 41, Rule 27 (b).

5. If such proof of subsequent events helps the court to determine the facts in issue in the interest of justice, it should not prevent a party from adducing the same as evidence. The respondent/husband wants to rely upon the judgment and order in the Section 498A proceeding to show that his conduct was never wrongful and that because of this, he was granted permanent custody of the child.

6. This court is conscious of Mr. Bhattacharya's objection that normally, proof of any fact in a criminal proceeding is not to be taken as proof of those facts in a civil proceeding as provided in section 43 of the Indian Evidence Act, 1872.

7. Subject to the above objection, the evidence being Annexures A and B of the application (CAN 8245 of 2017) is admitted in evidence and to be treated as exhibits in the proceedings subject to the objection of Mr. Bhattacharya that the contents of those documents or any fact declared as proved in those documents are not to be taken as so proved in this proceeding unless expressly allowed by the Indian Evidence Act, 1872.

8. The additional evidence allowed to be adduced in the appeal (FA 83 of 2013) will be incorporated in an informal supplementary paper book to be prepared and filed by the advocate on record for the respondent by 4th December, 2017. Copies thereof are to be served by him on the appellant's advocate on record.

9. The application (CAN 8245 of 2017) is allowed to the above extent.

10. List this appeal once again for further consideration on 11th December, 2017.

11. Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.