Applications for additional evidence at the appellate stage must be considered during final arguments and not prematurely, aligning with principles to prevent patching weak cases.

JUDGMENT :

Devashis Baruah, J.

Heard Mr. P. Mahanta, the learned counsel appearing on behalf of the Petitioner and Mr. K. Bhattacharjee, the learned Government Advocate appearing on behalf of the respondent Nos. 1 and 2.

2. The supervisory jurisdiction of this Court is invoked challenging the order dated 04.07.2024 whereby the learned Court of the Civil Judge (Senior Division), Sonitpur at Tezpur (hereinafter referred to as the ‘the learned First Appellate Court’) had rejected the application filed under Order XLI Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 (for short ‘the Code’) which have been registered and numbered as Misc. (J) Case No.44/2023.

3. The learned counsel for the petitioner drawing the attention of this Court to the judgment of the Supreme Court in the case of Union of India Vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148 had submitted that the learned First Appellate Court ought to have considered the application under Order XLI Rule 27 of the Code at the stage of arguments and not prior thereto as it is the settled principle of law. The learned counsel submitted that in the instant case, the learned First Appellate Court had taken up the application under Order XLI Rule 27 of the Code for adducing additional evidence in relation to exhibit five documents even prior to the appeal being heard on merits.

4. This Court has duly taken note of the judgment of the Supreme Court in the case of Ibrahim Uddin (supra) wherein the Supreme Court at paragraph No.49 to 52 dealt with the stage at which the application under Order XLI Rule 27 of the Code was required to be taken into consideration. The said paragraphs being relevant are reproduced herein under:

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation.)

50. In Parsotim Thakur v. Lal Mohar Thakur it was held : (LW pp. 86-87)

“… The provisions of Section 107, CIVIL PROCEDURE CODE , as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.

… Under Rule 27, clause (1)(b), it is only where the appellate court ‘requires’ it (i.e. finds it needful)…. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent’.

… It may well be that