The provisions of Order 41, Rule 27(1)(b) of the Civil Procedure Code, 1908 allow the appellate court to admit additional evidence if it is required to enable the court to pronounce the judgment or for any other substantial cause, even if the conditions under clauses (a) and (aa) are not satisfied.

Judgement

ORDER :- An order of the Subordinate Judge, Bhubaneswar, rejecting the prayer of the petitioner for adducing additional evidence has given rise to this revision.

2. The opposite parties having obtained a cash credit accommodation to the extent of Rs. 5,000/- secured a loan from the petitioner-Bank. When they failed to clear up the dues, the petitioner filed the suit for realisation of the amount outstanding against the opposite parties. The trial court decreed the suit in part holding the balance to have been barred by limitation. The petitioner filed an appeal and therein filed an application under O.41, R.27 of the Civil P.C. for acceptance of certain documents, namely, statement of accounts with certificate under the Bankers Books of Evidence Act and certain cash credit pay-in-slips of different dates as additional evidence, petitioner s case was that on 18-9-1976 while the case was taken up for hearing, it was not ready and filed an application for time. Its prayer for adjournment having been rejected, the case was taken up and in such circumstances, it could not file the documents though the documents were in its possession. The petitioner also contended that under confusion of law, appropriate steps for proving the documents were not taken earlier. Its prayer before the trial court made belatedly for re-examination of its witnesses to prove the documents was refused. According to the petitioner, the documents would prove acknowledgment of liability by the opposite parties and so, no part of its claim would be barred by limitation. Against the aforesaid background, the petitioner filed its application for reception of additional evidence. The appellate court rejected the petition holding as follows :

"I find that the present petition does not come under any of these three categories.

It was not a case where the lower court refused to admit the evidence. Since the documents now sought to be produced were in possession and knowledge of the petitioner it has no excuse not to produce it before the lower court. For pronouncing the judgement in appeal, this appellate court does not require the documents. Thus I find the plaintiff s petition does not come within the ambit of O.41, R.27, C.P.C ....."

No exception can be taken that in the facts and circumstances of the case, cls. (a) and (aa) of sub-r.(1) of R.27 of O.41, C.P.C. were not attracted. Mr. Sinha, learned counsel for the petitioner, however, joins issue on the observation of the appellate judge that the appellate court did not require the documents. He submits that the case came within the ambit of cl. (b) of sub- rule (1) which could still apply despite non-applicability of cls. (a) and (aa). He further submits that the stage, when the appellate court should decide whether the document is required by it, is reached after the commencement of the hearing of the appeal when the court apprises itself of the facts and circumstances of the case. At that stage only the appellate court would be in a position to adjudge the requirement. The record of the appeal does not disclose that the appellate court had by the time of disposal of the application filed by the petitioner for adducing additional evidence apprised itself of the facts of the case. He submits that the order of the appellate court rejecting the petition of the petitioner for additional evidence is unsustainable.

3. The provisions contained in O.41, R.27 of the Civil P.C. are clearly not intended to allow the litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up the omissions in the court of appeal. Under cl. (1) (b) it is only where the appellate court requires it that additional evidence can be admitted. It may be required "to enable the court to pronounce the judgement or for any other substantial cause", but in either case it must be the court that requires it. The legitimate occasion for the exercise of his discretion is not whenever before the appeal