An appellate court can only admit additional evidence if the party seeking to produce the evidence establishes that, despite the exercise of due diligence, the evidence was not within his knowledge or could not be produced at the time the decree appealed against was passed.

S. C. MOHAPATRA, J.

( 1 ) PLAINTIFF filed the suit asserting that he is the adopted son of defendants father. Defendant contested the relationship and after trial, suit was dismissed against which plaintiff preferred an appeal. During pendency of the appeal, plaintiff filed an application for admitting some documents as additional evidence under Order 41, Rule 27 C. P. C. claiming that they are certified copies and public documents which contained admissions of the defendant before the Consolidation Authorities with regard to the relationship. It was stated that appellant could not produce the documents in the trial court due to shifting of the office of the Consolidation and Settlement Authorities. However, along with the application, no document was filed. Defendant-respondent objected to the acceptance of any additional evidence. Appellate court passed an order that the application would be considered at the time of hearing. Appeal was heared and was posted to 19-1-1989 for judgment. During that period, plaintiff filed an application for amendment of the plaint for which judgment could not be delivered. After the said application was disposed of, appellant filed an application that without disposing of the petition for additional evidence, the appeal need not be heard and both the applications for additional evidence and the appeal cannot be heard together. Appellate court accepted such a prayer and heard the question of admitting additional evidence. On perusal of the petition for additional evidence, appellate court held that the appellant having asserted that the documents to be admitted as additional evidence would disclose about his claim of relationship which could not be obtained despite due diligence and attempt to obtain the certified copy of those documents from the consolidation authorities and settlement authorities and having further asserted that unless those documents were filed in the appeal, Court would not be in a position to dispose of the appeal. Accordingly, it allowed the petition calling upon the appellant to produce the documents immediately. This. Civil Revision has been filed assailing the said order.

( 2 ) FROM the impugned order, it is clear that the documents were not before the Court. Appellate court has not discussed in what manner attempt was made by the appellant to obtain the certified copies of the documents and what was the nature of diligence of the appellant. It is not the case of the appellant that the documents were not in existence when the suit was heard and came into existence after disposal of the suit. It is also not the case of the appellant that he had no knowledge about such documents. His case is that despite due diligence and attempt he could not obtain the same before the decree appealed against was passed and the appellate court would require those documents to enable it to pronounce the judgment.

( 3 ) ORDER 41, Rule 27 C. P. C. , empowers an appellate court to admit additional evidence which reads as follows:-"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 (A) (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 shal