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2016 DIGILAW 978 (ALL)

Markandey Singh v. Awadhesh Narayan Singh

2016-03-16

SUNEET KUMAR

body2016
JUDGMENT Suneet Kumar,J. The plaintiff/applicant instituted a suit for cancellation of sale-deeds dated 24 February 1975 and 16 May 1975. The respondent/defendants contested by filing written statement. The suit was rejected by the trial Court; aggrieved, applicant preferred an appeal and during pendency of the appeal an application was filed under Order 41 Rule 27 of the Code of Civil Procedure (CPC) for admitting additional evidence. The lower Appellate Court rejected the application by order dated 13 May 2015. The order rejecting the application is being assailed under Article 227. The application under Order 41 Rule 27 would state that while preparing the case during argument certain important and relevant documents which were necessary and available at the time of preparation is being sought to be brought on record. It was further alleged that the earlier counsel had not advised the applicant that the said documents are relevant for disposal of the suit proceedings. The appellate Court rejected the application for the reason that there was no explanation as to why, the documents that were being sought to be brought on record at this stage was not made available earlier, further, the applicant failed to establish that despite exercise of due diligence the evidence was not within his knowledge or could not have been produced by him at that time when the decree appealed against was passed. 2. The general principle is that the Appellate Court should not travel outside the record of the lower court and would not take any evidence in appeal. However, as an exception, Order 41 Rule 27 enables the appellate court to take additional evidence in exceptional circumstances. The Court may permit additional evidence only if the conditions laid down in Rule 27 are found to exist. The parties, therefore, are not entitled, as of right, to the admission of such evidence. The provision does not apply when on the basis of the evidence on record the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the Court and it must be used sparingly. The judicial discretion is circumscribed by the limitation specified in the Rule itself. 3. The provisions does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. The matter is entirely within the discretion of the Court and it must be used sparingly. The judicial discretion is circumscribed by the limitation specified in the Rule itself. 3. The provisions does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial Court, additional evidence should not be admitted in appeal. The inadvertence of the party or his inability to understand the legal issue involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a "substantial cause". The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so, cannot have it admitted in appeal. (State of U.P. vs. Manbodhan Lal Srivastava ( AIR 1957 SC 912 ). 4. In Union of India vs. Ibrahim Uddin and another (2012) 8 SCC 148 the Supreme Court held as follows: 37. To sum up on the issue, it may be held that 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 condition 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. 5. The applicant failed to point out any irregularity, illegality or jurisdictional error in the impugned order. 6. The petition is, accordingly, dismissed. No cost.