Tag Archives: Later Stage of Litigation

Jurisdiction of First Appellate Court – To accept additional evidence

As far as the principles governing the jurisdiction of the First Appellate Court to take/accept the additional evidence on record under Order XLI, Rule 27, CPC, the guidelines had been issued by the Apex Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 as under:
1. The general principle is that the Appellate court should not travel outside the record of the Lower Court and cannot take any evidence in appeal.
2. The powers under Order XLI, Rule 27 CPC given to the first appellate court to take additional evidence is in the nature of exception and has to be exercised in exceptional circumstances with due care and caution.
3. The Appellate court may permit additional evidence only and only if the conditions laid down in the said rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence.
4. The matter is entirely within the jurisdiction of the court and is to be used sparingly as the discretion provided therein circumscribed by the limitations specified in the rule.
5. The court shall not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain issue lies fails to discharge the same, would not be entitled to a fresh opportunity to adduce evidence as in such a case the court can pronounce judgment against him and does not require any additional evidence to enable it to pronounce its judgment in appeal.
6. Under Order XLI, Rule 27, CPC, the power given to the appellate court to allow a document to be produced or a witness to be examined, is limited to those cases where it is found necessary to obtain such evidence for enabling it to pronounce judgment. It does not entitle the Appellate Court to allow a party to remove lacuna in the evidence or supplement the evidence adduced by one party.
7. In the absence of satisfactory reasons for the non production of the evidence in the trial court, additional evidence could not be admitted in appeal as a party guilty of remissness in the lower court is not entitles to the indulgence of being allowed to give further evidence under this rule. Thus a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or chose not to do so, cannot have it admitted in appeal.
8. The inadvertence of the party or his inability to understand the legal issue involved or the wrong advice of the pleader or the negligence of the pleader or that the party did not realize the importance of the document does not constitute a “substantial cause” within the meaning of this rule. Mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.
9. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, meaning thereby the rule that the appellate court requires additional evidence for any substantial cause, will apply in such a case where it is felt by the appellate court that the evidence had been so imperfectly taken by the trial court that it cannot pass a satisfactory judgment.
10. Wherever the appellate court admits additional evidence, it should record its reasons for doing so, as per sub rule (2) of Rule 27 of Order XLI, CPC. The requirement in the said sub rule is with a view to put a check against too easy reception of evidence at a later stage of the litigation and further that the statement of reasons inspires confidence of the litigant and disarm objection. The omission to record the reasons must, therefore, be treated as a serious defect. However, the said provision is only directory and not mandatory, if the admission of such evidence can be justified under the rule.
11. The reasons so required, are not necessarily to be recorded in a separate order and may be embodied in the judgment of the Appellate Court.
12. Mere reference to the peculiar circumstance of the case or mere statement that the evidence is necessary to pronounce judgment or that the additional evidence is required to be admitted in the interest of justice, or there is no reason to reject the prayer for admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons.
13. Where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Smt. Sendal (deceased) v. Smt. Hamida, 2018 (138) RD 535.

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Filed under Additional Evidence, Civil Law