The requirement for additional evidence should have a direct and important bearing on a main issue in the case, as per Rule 27(2) of the Code of Civil Procedure.

Heard learned counsel for the parties.

2. During the course of hearing, the respondent has proceeded to move this application under Order 41 Rule 27 CPC. This application has been moved only with a view to delay the hearing of the appeal. The hearing of the appeal has taken place for about a month. Counsel for the respondent has not cooperated in the hearing seriously as various adjournments have been sought by him on account of engagement in another Court. Anyhow, when the hearing was nearing conclusion, then this application was moved with the prayer that the children may be summoned before this Court and their statement should be taken in order to prove the cruelty by the appellant against them.

3. The said application has been opposed by the counsel for the appellant and it has been submitted that the application has been moved on unfounded facts. The trial court has never recorded the statement of the children and interim custody was given on 11.1.2005, but how the said order was recalled at 3 PM by recording a finding that the appellant was not present to have custody of the children. He has further submitted that the trial court has also recorded a wrong finding as only two children were present, whereas a mention has been made in the order that three children were present. No evidence has been adduced in this regard and neither any pleading is there in the plaint so far the cruelty with the children is concerned. In respect of cruelty with the children, a general allegation has been made and the respondent has also not given any specific instance of cruelty in his statement. The cruelty with the husband is the ground under Section 13-A of the Hindu Marriage Act, but if the respondent has failed to prove any cruelty to the children as contemplated under law, then they can not patch up weak parts of his case and fill up omissions in court of appeal.

4. In support of his contention, counsel for the appellant has relied upon the decision rendered by the Privy Council in the case of Parsotim Thakur and others vs. Lal Mohar Thakur and others, AIR 1931 Privy Council 143. In the said judgment, it was held that under Rule 27 clause (1)(b), 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 and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement as least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case.

5. Considering the proposition of law as enunciated by the apex Court in the aforesaid case, we are of the view that producing of the children for recording their statement is not necessary in the light of the conduct of the parties, where no issue was directly involved in respect of recording of the statement of the children before the trial court. The observation by the trial court was only in absence of the mother that the children expressed their desire not to go with the mother. One does not know if the mother would have been