An attorney holder cannot depose for a principal regarding acts within the principal's personal knowledge. Failure of the principal to testify when challenging a registered document leads to an adverse inference, and additional evidence in appeal is denied if no due diligence for earlier production is shown.

NIDHI GUPTA, J.

CM-6041-C-2021

This is an application under Order 41 Rule 27 read with Section 151 CPC for leading additional evidence in the shape of Special Power of Attorney dated 15.05.2018 as Annexure A1, in the interest of justice.

It is submitted by learned counsel for the applicant/appellant that the said document is very necessary to adjudicate the dispute at hand; and therefore, the applicant be permitted to place on record the said Special Power of Attorney for the proper and just decision of the present appeal.

Heard.

On a Court query as to why the said Special Power of Attorney was not produced by the applicant before the learned District Courts, learned counsel for the applicant/appellant has no reply. Even a perusal of the instant application shows that no reason whatsoever has been given by the applicant for failure to produce the said document before the District Courts.

For leading additional evidence before the Appellate Court, Order 41 Rule 27 (1) CPC, mandates as follows:

“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 exam med.

(2) Whenever additional evidence is allowed to be produced, by an Appellate Court, the court shall record the reason for its admission.”

A perusal of the above provision shows that the scope of Order 41 Rule 27(1) of the CPC is very clear. No doubt, the provision enables the party to file additional evidence at the first and second appellate stages. However, Rule 27(1)(aa) stipulates that such additional evidence can be permitted only if the party requesting it must be able to prove that, despite their best efforts, they were unable to introduce the additional evidence in the initial proceeding. Thus, the basic principle for admitting additional evidence is that the party appealing is able to establish that there was a valid reason for not submitting such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties to the lis. As noted above, in the present case, learned counsel for the applicant is unable to give any reason whatsoever as to why the said document was not produced by the applicant before the District Courts.

Hon’ble Supreme Court in CA 16899 of 1996 “ Karnataka Board of Wakf Vs. Government of India ” has categorically held that parties to an appeal shall not be entitled to produce additional evidence, unless they have shown that despite due diligence, they were unable to produce such evidence.

Reference may also be made to judgment of the Hon’ble Supreme Court in C.A. No.10195 of 2013 titled as “Govt. of Karnataka and Another Vs