The main legal point established in the judgment is that the power to permit additional evidence at the appellate stage under Order 41 Rule 27 CPC is limited and should be exercised sparingly, with strict adherence to the specified conditions. The judgment emphasizes the need for exceptional circumstances and the fulfillment of specific criteria for allowing additional evidence, highlighting the principles governing the appellate court's discretion in such matters.

JUDGMENT :

In both writ petitions, petitioner has challenged rejection of his application under Order 41 Rule 27 CPC. Since common question of fact and law are involved in both writ petitions, therefore these are being decided together.

2. In the year 2011, two suits were filed by the respondents against the petitioner which were decreed by the Trial Court vide judgment and order dated 30.3.2016. However, on petitioner’s appeal, judgment and decree passed in both the suits were set aside and the matter was remanded back to the Trial Court. Upon remand of the matter, learned Trial Court again decreed both the suits vide judgment and order dated 2.9.2021. Petitioner challenged the judgment and decree passed in both the suits by filing Civil Appeal No. 11 of 2021 and Civil Appeal No. 12 of 2021. In both the appeals, petitioner filed application under Order 41 Rule 27 CPC seeking permission to adduce additional evidence including a Will dated 30.8.2010, alleged to have been executed by Swami Hansraji Maharaj in favour of the petitioner. By a common order dated 27.4.2022, learned District Judge rejected the said applications filed by the petitioner. Thus feeling aggrieved, petitioner has approached this Court under Article 227 of the Constitution.

3. The impugned order passed by the learned Appellate Court/District Judge, Tehri Garhwal is on record as Annexure-10 to the writ petition. Learned Trial Court has considered the matter in great details and has held that the prayer made by the petitioner does not fall under Clause (a) or Clause (aa) of Rule 27(1) of Order 41 CPC. Rule 27 of Order 41 CPC is reproduced below for ready reference :

“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.”

4. A perusal of Rule 27 of Order 41 CPC reveals that production of additional evidence, whether oral or documentary, at the appellate stage is permitted only under three circumstances, namely, (i) where the Trial Court has refused to admit the evidence though it ought to have admitted it, or (ii) the evidence was not available to the party despite exercise of due diligence, or (iii) the Appellate Court required the additional evidence so as to pronounce the judgment or for any other substantial cause.

5. Hon’ble Supreme Court in the case of Jagdish Prasad Patel v. Shivnath, reported in 2019 (6) SCC 82, has held that an application for production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant document in the lower court, although the Court can receive additional evidence in the interest of justice when satisfactory reasons are given.

6. In the case of Union of India v. Ibrahim Uddin & Another, (2012) 8 SCC 148, the Hon’ble Supreme Court has reiterated the principle that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, Order 41 Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. Relevant extract of said judgment are reproduced below :

“36. Th