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2017 Supreme(Ori) 235
IN THE HIGH COURT OF ORISSA, CUTTACK
A.K. RATH, J.
Gangadhar Mishra - Petitioner
Versus
Bilashini Panigrahi and others - Opposite Parties
C.M.P. No. 1600 of 2015
Decided On : 21-02-2017
Advocate Appeared:
For the Petitioner: Miss S. Pattnaik
For the Opposite Parties : Mr. A.R. Dash
The discretionary power to allow additional evidence in appeal is circumscribed by limitations prescribed in Order 41 Rule 27 C.P.C.
Headnote:
Additional Evidence - Civil Appeal - The court quashed the order allowing the application to adduce additional evidence, citing the requirement to consider such applications at the time of hearing of the appeal as per Order 41 Rule 27 C.P.C.
Fact of the Case:
The petitioner filed a suit for specific performance of contract, which was decreed. The defendant filed an appeal and applied to adduce additional evidence under Order 41 Rule 27 C.P.C. The appellate court allowed the application before the hearing began.
Finding of the Court:
The court quashed the order allowing the application for additional evidence, directing the appellate court to consider it at the time of hearing of the appeal and dispose of the appeal expeditiously.
Issues: The issue was whether the appellate court's allowance of the application for additional evidence before the hearing of the appeal was in accordance with the provisions of Order 41 Rule 27 C.P.C.
Ratio Decidendi: The court relied on the interpretation of Order 41 Rule 27 C.P.C., emphasizing that the discretionary power to allow additional evidence in appeal is circumscribed by limitations prescribed in the rule.
Final Decision: The court quashed the order and directed the appellate court to consider the application for additional evidence at the time of hearing of the appeal and dispose of the appeal expeditiously.
JUDGMENT :
A.K. Rath, J.
This petition challenges the order dated 21.11.2015 passed by the learned District Judge, Puri in R.F.A. No.103 of 2009. By the said order, learned appellate court has allowed the application to adduce additional evidence.
2. The petitioner as plaintiff instituted T.S. No.413/94 in the court of the learned Civil Judge (Sr. Divn.), Puri for specific performance of contract impleading the opposite parties as defendants. The suit was decreed. Assailing the judgment and decree of the learned trial court, the defendant no.1 filed R.F.A. No.103 of 2009 in the court of the learned District Judge, Puri. During pendency of the appeal, the appellant filed an application under Order 41 Rule 27 C.P.C. to adduce additional evidence. The same having been allowed, the instant petition has been filed.
3. Miss S. Pattanaik, learned counsel for the petitioner submits that when an application for additional evidence is filed, the same shall be considered at the time of hearing of the appeal. But in the instant case, learned appellate court has allowed the application before the hearing has began.
4. Per contra, learned counsel for the opposite parties supports the order.
5. This Court in the case of Sankar Pradhan vs. Premananda Pradhan (dead) and others, 2015 (2) OLR 607 held thus:-
“5. Order 41 Rule 27 of C.P.C. deals with production of additional evidence in the appellant court. Sub Rule 1 of Rule 27 of Order 41, which is the hub of the issue, is quoted hereunder:-
“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.”
6. Section 107(1)(d) C.P.C. enables the appellate court to admit additional evidence, whereas Order 41 Rule 27 C.P.C. furnishes grounds on which additional evidence may be taken. It confers discretionary power on the appellate court to allow additional evidence in appeal. The said power is circumscribed by limitations prescribed in Clauses (a), (aa) or (b) of Rule 27(1) of C.P.C.
7. In Persotim Thakur Vs. Lal Mohar Thakur and others, AIR 1931 PC 143, it is held that under Cl.(1) (b) of Rule 27 it is only where the appellate Court “requires” it, ( i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. 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 the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing (emphasis laid). The same view was taken by this Court in the cases of Banchhanidhi Behera Vs. Ananta Upadhaya and others, AIR 1962 Ori 9 and State Bank of India Vs. M/s. Ashok Stores & others, 53 (1982) C.L.T. 552.
8. Keeping in
