An appellate court cannot permit additional evidence under Order 41 Rule 27(aa) of the Code of Civil Procedure if the applicant fails to establish due diligence, and such provisions cannot be invoked merely to fill lacunae or omissions in evidence adduced during the trial.

ORDER :

N. MALA, J.

(1) The Civil Revision Petition is filed against the fair and decreetal order dated 20.11.2024 in I.A.No.2 of 2024 in A.S.No.34 of 2018, allowing the respondent's application filed under Order 41 Rule 27 (aa) of the Code of Civil Procedure, to let in additional evidence for examining witnesses in support of the Settlement Deed dated 27.06.1985.

(2) The parties will be alluded as per their ranking in the Civil Revision Petition.

(3) The defendant in the suit is the petitioner in the Civil Revision Petition. The suit was filed by the respondent for declaration of his title and for permanent injunction on the basis of the Settlement Deed dated 27.06.1985, executed by his father in his favour. On contest by the petitioner, the Trial Court dismissed the suit, by the judgment and decree dated 18.07.2018. Aggrieved by the judgment and decree of the Trial Court, the petitioner preferred an appeal in AS.No.34/2018, before the Lower Appellate Court. During the pendency of the appeal, the respondent filed an application in IA.No.2/2024 under Order 41 Rule 27[aa] of CPC, to examine the legal heirs of the attestors of the Settlement Deed dated 27.06.1985, as additional evidence, on the ground that despite due diligence, he was not able to gather the particulars of the legal heirs of the deceased attestors.

(4) The petitioner filed a counter to the petition stating inter alia that the petition had no merits and the same is filed only to fill up the lacuna in the respondent's case. The petitioner further contended that there is no due diligence on the part of the respondent and that the petition was filed only to drag on the proceedings. The petitioner therefore prayed to dismiss the IA.

(5) The Lower Appellate Court, on consideration of the rival contentions, allowed the application for additional evidence and aggrieved by the said order, the petitioner has filed the above Civil Revision Petition.

(6) The learned counsel for the petitioner reiterated the submissions made before the Lower Appellate Court and further submitted that the reasoning of the Lower Appellate Court that the respondent deserved an opportunity to prove the Settlement Deed by adducing oral evidence before it since it was his final chance, is untenable and against the provisions of Order 41 Rule 27 of CPC. The learned counsel submitted that the respondent, having failed to prove due diligence, the Lower Appellate Court ought to have dismissed the application. The learned counsel therefore prayed that the impugned order deserved to be set aside.

(7) The learned counsel for the respondent, on the other hand, submitted that the Lower Appellate Court had exercised its discretion on sound reasonings and therefore, no interference was warranted in the impugned order in the Civil Revision Petition.

(8) Heard both sides and perused the materials placed on record.

(9) Order 41 Rule 27 of CPC reads as follows:-

“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.”

(10) Upon reading of the above provisions, it is clear that the powe