The admissibility of additional evidence at the appellate stage depends on whether the appellate court requires the evidence to enable it to pronounce judgment or for any other substantial cause.

JUDGMENT :

1. The present writ petition has been filed for quashing the order dated 27.11.2019 passed by the learned District & Additional Sessions Judge-I, Ghatshila in Civil Appeal No. 42 of 2018 whereby an application filed by the petitioners under Section 107(1)(d) read with Order XLI Rule 27 of the CPC for adducing additional evidence at the appellate stage has been rejected.

2. Learned counsel for the petitioners submits that Partition Suit No. 06 of 2009 was preferred by the petitioners’ mother against the defendants claiming her share over the suit land. During pendency of the said suit, the petitioners’ mother i.e. the original plaintiff died and thereafter the petitioners were substituted as the plaintiffs. The said suit was dismissed vide judgment dated 27.04.2018 passed by the Civil Judge (Sr. Div.)-I, Gahtshila. Aggrieved thereby, the petitioners preferred Civil Appeal No. 42 of 2018 before the Court of the learned District Judge-I, Ghatshila. During pendency of the said appeal, the petitioners filed two applications dated 29.05.2019 & 21.08.2019 under Section 107(1)(d) read with Order XLI Rule 27 of the CPC claiming that the said documents were not available during pendency of the said suit and they luckily traced out the same only after death of the original plaintiff. The respondents objected the said applications filed by the petitioners and ultimately the same were dismissed vide order dated 27.11.2019. It is further submitted that the learned Court below failed to appreciate that the petitioners had sufficient reason for not adducing the said documents as evidence during pendency of the said suit. Only after death of the original plaintiff i.e. the mother of the petitioners, they found the said documents, which were kept in a mud pot (‘Handi’) and immediately thereafter the applications were filed by them before the appellate Court under Section 107(1)(d) read with Order XLI Rule 27 of the CPC to bring those documents on record.

3. Heard learned counsel for the petitioners and perused the relevant materials available on record. To appreciate the said contention of learned counsel for the petitioners, it would be appropriate to go through the provisions of Order XLI Rule 27 of the CPC which read as under:

“Order XLI Rule 27— Production of additional evidence in Appellate Court.—

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if—

(a) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission.”

4. As per the provisions of Order XLI Rule 27 of the CPC, no additional evidence is permitted to be produced by either of the parties in the Appellate Court. However, three exceptional situations have been provided under which the Appellate Court may allow such evidence or document to be produced or any witness to be examined. Sub-rule 1(a) of Rule 27 permits the production of evidence at appellate stage when the Court which has passed the decree, has refused to admit evidence which ought to have been permitted. Sub-rule 1(aa) of Rule 27 of the CPC provides that even after exercising due diligence, if the party seeking to produce additional evidence is able to establish that such evidence was n