IMPORTANT POINT
Production of additional evidence – Application for taking additional evidence on record at an appellate stage, even if filed during pendency of appeal, is to be heard at the time of final hearing of appeal.

JUDGMENT (ORAL)

M.S. Sonak, J.—Heard Zeller De Souza, the learned Counsel for the petitioners. Mr. A.D. Bhobe, the learned Counsel for the respondents no.1 and 2.

2. Rule.

3. Rule is made returnable forthwith at the request of the learned Counsel for the parties.

4. The short question which arises for determination in this petition is not whether the petitioners application under Order 41 Rule 27 of C.P.C. ought to have been allowed or not but the question is the stage at which the said application should have been taken up for consideration.

5. In Union of India Vs. Ibrahim Uddin and another (2012) 8 Supreme Court Cases 148, the Hon’ble Supreme Court has made the following observations at paras 49 to 53.

49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation)

50. In Parsotim Thakur v. Lal Mohar Thakur it was held: (LW pp. 86-87)

“… The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41 Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal.

… Under Rule 27, clause (1)(b), it is only where the appellate court ‘requires’ it (i.e. finds it needful)…. 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 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 at 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.”

(emphasis added)

(See also Indrajit Pratap Sahi v. Amar Singh.)

51. In Arjan Singh v. Kartar Singh this Court held: (AIR pp. 195-96, paras 7-8)

“7. … If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. …

8. … The order allowing the appellant to call the additional evidence is dated 17-8-1942. The appeal was heard on 24-4-1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing its judgment.”

(emphasis added)

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