WPMS/3025/2022
2022 Latest Caselaw 3876 UK

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                                      WPMS No. 3025 of 2022
                                      Hon'ble Manoj Kumar Tiwari, J.

Heard Mr. Nikhil Singhal, learned Counsel for the petitioner.

Petitioner filed a suit for permanent injunction against the respondents. The said suit was dismissed by learned Trial Court vide judgment dated 16.09.2016. Petitioner challenged the said judgment, passed by learned Trial Court, by filing an appeal under Section 96 read with Order 41 CPC. In the said appeal, petitioner filed an application seeking permission to produce additional evidence. The said application under Section 41 Rule 27 CPC is on record as Annexure-6 to the writ petition. Perusal thereof reveals that petitioner had sought permission to place on record a registered agreement to sell, executed on 22.07.1991, and also copy of letter dated 04.10.1991, alleged to have been written by Subhash Chand in favour of Kasturi Lal.

Learned Appellate Court partly allowed petitioner's aforesaid application and permitted her to place on record the registered agreement to sell. However, her prayer for taking on record photocopy of the letter, allegedly written by Subhash Chand in favour of Kasturi Lal, was rejected. Thus feeling aggrieved, petitioner has approached this Court seeking the following relief:-

"i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 19.10.2022 (contained as Annexure no. 1 to the writ petition) passed by learned 4th Additional District Judge, Haridwar, in Civil Appeal No. 51/2016, Smt. Bala Vs. Jaswant Singh and another, and further be pleased to allow the application paper no. 47Ka1 file by appellant/plaintiff in toto."

Order 41 Rule 27 Code of Civil Procedure, 1908 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."

Rule 27 of Order 41 CPC is an exception to the general rule that the Appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. Language of Rule 27 (1) of Order 41 CPC, which is negatively couched, provides that parties to an appeal shall not be entitled to produce additional evidence. However, under certain circumstances, the Court may permit any party to produce additional evidence at the appellate stage. The contingencies, in which a party can be permitted to produce additional evidence, are enumerated in Clause (a), (aa) & (b) of Rule 27 (1) of Order 41 CPC. The basic principle for admission of additional evidence is that the person seeking such admission should be able to establish that despite his best efforts, such additional evidence could not be produced before the Trial Court and such additional evidence can be permitted to be produced only when it is found to be relevant for determination of the real issue. However, recourse to this provision cannot be permitted merely because a party at the stage of appeal finds that some material, which could have tilted the decision in its favour, was not produced before the Trial Court. In other words, this provision is not meant to fill up any lacuna.

Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148, has summarised the legal position in para 48 of the said judgment and the same is reproduced below:-

"48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."

In the present case, petitioner had sought permission to produce two documents, out of which one was inadmissible in evidence. Accordingly, learned Appellate Court permitted the document, which was admissible in evidence to be placed on record, however, photocopy of the letter, allegedly written by Subhash Chand in favour of Kasturi Lal, was not permitted to be placed on record.

Valid reasons have been given by learned Appellate Court for partly rejecting petitioner's aforesaid application. This court does not find any reason to interfere with the discretionary order passed by learned Appellate Court.

Accordingly, writ petition fails and is dismissed. No order as to costs.

(Manoj Kumar Tiwari, J.) 02.12.2022 Navin