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Additional Evidence at Appellate Stage

CIVIL PROCEDURE CODE, 1908

— Or. 41 R. 27 — Additional evidence — Application for production of, in appellate court — Stage of consideration — Should be considered at time of final hearing of appeal on merits .

Respondent 1-plaintiff filed a suit seeking a decree for declaration making averments that the suit land originally had been held by the Maratha Government (Scindia-Gwalior). That the ancestors of the plaintiff having a close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800. Subsequently, the land was partitioned between the ancestors of the plaintiff in the year 1819. That Respondent 1-plaintlff being the only heir (descendant) of his ancestors, became the absolute owner of the land after the death of his mother. That the land was never sold, alienated, transferred or gifted to any person either by the plaintiff or his ancestors at any point of time. That the suit land was given on rent to the State authorities in Agra by executing a rent note for a sum of Rs 22 per month. That the Union of India claimed title over the suit land illegally and in an unauthorised manner on 22-2-1993 and afterwards, thus the cause of action arose to approach the court. The trial court dismissed the suit but it was decreed against the appellant State on first appeal and the decree was sustained in second appeal by the impugned judgment of the High Court.

The appellant-Defendant 1 filed the written statement denying the averments and ownership of Respondent 1-plaintiff and averred that the land belonged to the Ministry of Defence i.e. Union of India, a part of which had been leased out to several persons for agriculture work and their lease had been renewed from time to time. As they became unauthorised occupants, proceedings had been Initiated in accordance with law and eviction order had been passed against the occupants/tenants.

The trial court dismissed the suit. Respondent 1 preferred the first appeal, during pendency of which he filed an application under Order 41 Rule 27 CPC for adducing additional evidence i.e. will executed by his maternal grandfather dated 1-3-1929 bequeathing the property in his favour. It was stated in the application that at the time of the trial of the suit the will had misplaced and despite best effort and due diligence the will could not be available and hence could not be filed in the lower court, that the will was very much relevant to establish the right, title or interest in the disputed property of the plaintiff so the same was very necessary to be taken on record; and that in case of refusal to take the document on record the plaintiff will be deprived from getting justice. The first appellate court allowed the application, taking the view that the will was necessary for disposal of the appeal. The court also allowed the appeal. The court concluded: The Maratha Government had made the gift of land in favour of the plaintiffs forefathers which was subsequently partitioned. The registered partition deed stood duly proved and it was the proof of the title of Respondent 1-plaintiff. Respondent 1-plaintiff made an application for inspection of the record before the officers of the appellant-Defendant 1 but perusal of the record was not permitted. The appellant-Defendant 1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of Section 114 Illustration ( g ) of the Evidence Act. The will, taken on record as an additional evidence at the appellate stage, stood proved and thus, contents thereof automatically stood proved. Not filing any document in rebuttal of the will amounted to admission of the said will as well as its contents.

In the second appeal, preferred by the appellant, the High Court, while admitting the appeal, framed the following substantial questions of law:

1    . Whether the judgment and decree passed by the lower appellate court is vitiated in law inasmuch as the land in dispute which was recorded in Class B (4)

and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer?

2    . Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and the appellate court erred in law in discarding the same illegally against the relevant provisions of the Evidence Act and decreed the suit of the plaintiff on the false pretext that no document was filed on behalf of the defendant?

3    . Whether the appellate court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of the Specific Relief Act?

4    . Whether the lower appellate court has committed illegality while accepting the will dated 1-3-1992 filed on 28-4-1999 without its proof by the plaintiff?

The High Court did not answer any of them and dismissed the appeal.

Allowing the appeal of the State and dismissing the suit,

Held :

Additional evidence before the appellate court under Order 41 Rule 27 CPC

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. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. (Para 36)

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. The true test 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. Thus it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. 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. (Paras 49,

38 and 47)

Order 41 Rule 27 CPC 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 does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. The appellate court should 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 point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. The provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. (Paras 38, 37 and 36)

The admissibility of the additional evidence 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 words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. (Paras 49, 41 and 40)

Further, it is not the business of the appellate court to supplement the evidence adduced by one party or the other in the 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 as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Para 39)

Whenever the appellate court admits additional evidence it should record its reasons for doing so [sub-rule (2)]. It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule. (Para 42)

The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances 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 interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons. (Para 43)

It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice- delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Para 44)

To sum up on the issue of adduction of additional evidence before the appellate court, 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. But, the application should not be moved at a belated stage. (Paras 36 to 49)

Application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored. In the instant case, the application under Order 41 Rule 27 CPC was filed on 6-4-1998 and it was allowed on 28-4-1999 though the first appeal was heard and disposed of on 15-10-1999. Thus the first appellate court committed a grave error in deciding the application under Order 41 Rule 27 CPC much prior to the hearing of the appeal. Therefore, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement. (Paras 52, 53 and 85.7) Union of India v. Ibrahim Uddin , (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362 : (2012) 94 ALR 895 : (2012) 119 AIC 161 (SC) : (2012)

4 LW 359 (SC).

Bench Strength 2. Coram : Dr B.S. Chauhan and Dipak Misra, JJ. [Date of decision : 17-7-2012]

K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008; Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698; Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601; Arjan Singh v. Kartar Singh, AIR 1951 SC 193; Natha Singh v. Financial Commr., Taxation, (1976) 3 SCC 28; Parsotim Thakur v. Lai Mohar Thakur, (1931) 34 LW 76: AIR 1931 PC 143; Indrajit Pratap Sahi v. Amar Singh, (1922-23) SO IA 183: AIR 1923 PC 128; Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. All and Co., (1978) 2 SCC 493; State ofU.P. v. Manbodhan Lai Srivastava, AIR 1957 SC 912; S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101; State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568: (2008) 2 SCC (Cri) 49; State of Uttaranchal v. Sunil Kumar Singh Negi, (2008) 11 SCC 205: (2008) 2 SCC (L&S) 1093; Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732;

Sant Lai Gupta v. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336: (2010) 4 SCC (Civ) 904; City Improvement Trust Board v. H. Narayanaiah, (1976) 4 SCC 9; Basayya I. Mathad v. Rudrayya S. Mathad, (2008) 3 SCC 120, followed

CIVIL PROCEDURE CODE, 1908

— Or. 41 R. 27(l)(aa) — Additional evidence — Due diligence of party seeking production of, in appellate court — Party guilty of remissness in not producing evidence in trial court cannot be allowed to produce it in appellate court — There must be satisfactory reasons for non-production of the evidence in trial court for seeking production thereof in appellate court. Additional evidence before the appellate court under Order 41 Rule 27 CPC

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. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. (Para 36)

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. The true test 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. Thus it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. 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. (Paras 49,

38 and 47)

Order 41 Rule 27 CPC 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 does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. The appellate court should 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 point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. The provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. (Paras 38, 37 and 36)

The admissibility of the additional evidence 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 words "for any other substantial cause’ must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. (Paras 49, 41 and 40)

Further, it is not the business of the appellate court to supplement the evidence adduced by one party or the other in the 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 as a party guilty of remissness in the lower court Is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Para 39)

Whenever the appellate court admits additional evidence it should record its reasons for doing so [sub-rule (2)]. It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule. (Para 42)

The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances 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 interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons. (Para 43)

It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice- delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Para 44)

To sum up on the issue of adduction of additional evidence before the appellate court, 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. But, the application should not be moved at a belated stage. (Paras 36 to 49)

Application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored. In the instant case, the application under Order 41 Rule 27 CPC was filed on 6-4-1998 and it was allowed on 28-4-1999 though the first appeal was heard and disposed of on 15-10-1999. Thus the first appellate court committed a grave error in deciding the application under Order 41 Rule 27 CPC much prior to the hearing of the appeal. Therefore, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement. (Paras 52, 53 and 85.7) Union of India v. Ibrahim Uddin , (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362 : (2012) 94 ALR 895 : (2012) 119 AIC 161 (SC) : (2012)

4 LW 359 (SC).

Bench Strength 2. Coram : Dr B.S. Chauhan and Dipak Misra, ]J. [Date of decision : 17-7-2012]

K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn■ of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008; Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698; Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601; Arjan Singh v. Kartar Singh, AIR 1951 SC 193; Natha Singh v. Financial Commr., Taxation, (1976) 3 SCC 28; Parsotim Thakur v. Lai Mohar Thakur, (1931) 34 LW 76: AIR 1931 PC 143; Indrajit Pratap Sahi v. Amar Singh, (1922-23) 50 IA 183: AIR 1923 PC 128; Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. AH and Co., (1978) 2 SCC 493; State of U.P. v. Manbodhan Lai Srivastava, AIR 1957 SC 912; S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101; State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568: (2008) 2 SCC (Cri) 49; State of Uttaranchal v. Sunil Kumar Singh Negi, (2008) 11 SCC 205: (2008) 2 SCC (LAS) 1093; Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732;

Sant Lai Gupta v. Modem Coop. Group Housing Society Ltd., (2010) 13 SCC 336: (2010) 4 SCC (Civ) 904; City Improvement Trust Board v. H. Narayanaiah, (1976) 4 SCC 9; Basayya I. Mathad v. Rudrayya S. Mathad, (2008) 3 SCC 120, followed

CIVIL PROCEDURE CODE, 1908

— Or. 41 R. 27(l)(aa) and S. 96 — Production of additional evidence at appellate stage — Grant of permission as to — Conditions precedent therefor under Or. 41 R. 27(1)(aa), restated — Where evidence sought to be produced in first appeal by the party concerned was within knowledge of that party at the stage of trial, rejection of that party's application to adduce said evidence at appellate stage by High Court, held, was proper                                               

On perusal of Order 41 Rule 27(1)( aa ) CPC, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporates conditions to the effect that the party in spite of due diligence could not produce the evidence and the same cannot be allowed to be done at his leisure or sweet will. (Paras 4 and 5)

In the instant matter, the appellants (i.e. the State Government concerned) are a public authority and have sought to produce a road map which, it is unbelievable, was not within the knowledge of the appellants. Therefore, the application of the appellants to rely on the said map has rightly not been entertained at the stage of first appeal. The impugned order thus does not suffer from legal infirmity so as to interfere with the same. (Para 6) State of Karnataka v. K.C. Subramanya , (2014) 13 SCC 468 : (2014) 102 ALR 248 : (2014) 1±3 AIC 183 (SC) : (2014) 1 LW 103 (SC).

Bench Strength 2. Coram : Gyan Sudha Misra and P.C. Ghose, JJ. [Date of decision : 16-9-2013]

CIVIL PROCEDURE CODE, 1908

— Or. 41 R. 27(l)(b) — Additional evidence — Whether should be allowed by appellate court — Test to determine — If additional evidence is found to have important bearing on main issue, or found to be necessary to remove any lacuna in evidence and for clearing any doubt for pronouncing judgment and required in interest of justice, it may be allowed.

Respondent 1-plaintiff filed a suit seeking a decree for declaration making averments that the suit land originally had been held by the Maratha Government (Scindia-Gwalior). That the ancestors of the plaintiff having a close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800. Subsequently, the land was partitioned between the ancestors of the plaintiff in the year 1819. That Respondent 1-plaintiff being the only heir (descendant) of his ancestors, became the absolute owner of the land after the death of his mother. That the land was never sold, alienated, transferred or gifted to any person either by the plaintiff or his ancestors at any point of time. That the suit land was given on rent to the State authorities in Agra by executing a rent note for a sum of Rs 22 per month. That the Union of India claimed title over the suit land illegally and in an unauthorised manner on 22-2-1993 and afterwards, thus the cause of action arose to approach the court. The trial court dismissed the suit but it was decreed against the appellant State on first appeal and the decree was sustained in second appeal by the impugned judgment of the High Court.

The appellant-Defendant 1 filed the written statement denying the averments and ownership of Respondent 1-plaintiff and averred that the land belonged to the Ministry of Defence i.e. Union of India, a part of which had been leased out to several persons for agriculture work and their lease had been renewed from time to time. As they became unauthorised occupants, proceedings had been initiated in accordance with law and eviction order had been passed against the occupants/tenants.

The trial court dismissed the suit. Respondent 1 preferred the first appeal, during pendency of which he filed an application under Order 41 Rule 27 CPC for adducing additional evidence i.e. will executed by his maternal grandfather dated 1-3-1929 bequeathing the property in his favour. It was stated in the application that at the time of the trial of the suit the will had misplaced and despite best effort and due diligence the will could not be available and hence could not be filed in the lower court, that the will was very much relevant to establish the right, title or interest in the disputed property of the plaintiff so the same was very necessary to be taken on record; and that in case of refusal to take the document on record the plaintiff will be deprived from getting justice. The first appellate court allowed the application, taking the view that the will was necessary for disposal of the appeal. The court also allowed the appeal. The court concluded: The Maratha Government had made the gift of land in favour of the plaintiffs forefathers which was subsequently partitioned. The registered partition deed stood duly proved and it was the proof of the title of Respondent 1-plaintiff. Respondent 1-plaintiff made an application for inspection of the record before the officers of the appellant-Defendant 1 but perusal of the record was not permitted. The appellant-Defendant 1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of Section 114 Illustration ( g ) of the Evidence Act. The will, taken on record as an additional evidence at the appellate stage, stood proved and thus, contents thereof automatically stood proved. Not filing any document in rebuttal of the will amounted to admission of the said will as well as its contents.

In the second appeal, preferred by the appellant, the High Court, while admitting the appeal, framed the following substantial questions of law:

1    . Whether the judgment and decree passed by the lower appellate court is vitiated in law inasmuch as the land in dispute which was recorded in Class B (4) under Rule 6 of the Cantonment Land Administration Rules, 1937 was wrongly and illegally discarded on the ground of secondary evidence in the presence of the original register maintained by the Military Estate Officer?

2    . Whether the certified copy of the relevant registers maintained under the Cantonment Act are admissible in evidence and the appellate court erred in law in discarding the same illegally against the relevant provisions of the Evidence Act and decreed the suit of the plaintiff on the false pretext that no document was filed on behalf of the defendant?

3    . Whether the appellate court did not consider this aspect at all that the suit for declaration without possession is not maintainable is barred by the provision of the Specific Relief Act?

4    . Whether the lower appellate court has committed illegality while accepting the will dated 1-3-1992 filed on 28-4-1999 without its proof by the plaintiff?

The High Court did not answer any of them and dismissed the appeal.

Allowing the appeal of the State and dismissing the suit,

Held :

Additional evidence before the appellate court under Order 41 Rule 27 CPC

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. However, as an exception. Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. (Para 36)

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. The true test 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. Thus it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. 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. (Paras 49,

38 and 47)

Order 41 Rule 27 CPC 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 does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. The appellate court should 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 point lies falls to discharge the onus, he Is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. The provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. (Paras 38, 37 and 36)

The admissibility of the additional evidence 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 words "for any other substantial cause" must be read with the word "requires" in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this Rule. The mere fact that certain evidence is Important, is not in itself a sufficient ground for admitting that evidence in appeal. (Paras 49, 41 and 40)

Further, it is not the business of the appellate court to supplement the evidence adduced by one party or the other in the 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 as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Para 39)

Whenever the appellate court admits additional evidence it should record its reasons for doing so [sub-rule (2)]. It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule. (Para 42)

The reasons need not be recorded in a separate order provided they are embodied in the judgment of the appellate court. A mere reference to the peculiar circumstances 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 interests of justice, or that there is no reason to reject the prayer for the admission of the additional evidence, is not enough compliance with the requirement as to recording of reasons. (Para 43)

It is a settled legal proposition that not only administrative order, but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the Justice- delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable, particularly when the order is subject to further challenge before a higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected. (Para 44)

To sum up on the issue of adduction of additional evidence before the appellate court, 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. But, the application should not be moved at a belated stage. (Paras 36 to 49)

Application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored. In the instant case, the application under Order 41 Rule 27 CPC was filed on 6-4-1998 and it was allowed on 28-4-1999 though the first appeal was heard and disposed of on 15-10-1999. Thus the first appellate court committed a grave error in deciding the application under Order 41 Rule 27 CPC much prior to the hearing of the appeal. Therefore, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement. (Paras 52, 53 and 85.7) Union of India v. Ibrahim Uddin , (2012) 8 SCC 148 : (2012) 4 SCC (Civ) 362 : (2012) 94 ALR 895 : (2012) 119 AIC 161 (SC) : (2012)

4 LW 359 (SC).

Bench Strength 2. Coram : Dr B.S. Chauhan and Dipak Misra, JJ. [Date of decision : 17-7-2012]

K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526; Municipal Corpn. of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008; Soonda Ram v. Rameshwarlal, (1975) 3 SCC 698; Syed Abdul Khader v. Rami Reddy, (1979) 2 SCC 601; Arjan Singh v. Kartar Singh, AIR 1951 SC 193; Natha Singh v. Financial Commr., Taxation, (1976) 3 SCC 28; Parsotim Thakur v. Lai Mohar Thakur, (1931) 34 LW 76: AIR 1931 PC 143; Indrajit Pratap Sahi v. Amar Singh, (1922-23) 50 IA 183: AIR 1923 PC 128; Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. All and Co., (1978) 2 SCC 493; State of U.P. v. Manbodhan Lai Srivastava, AIR 1957 SC 912; S. Rajagopal v. C.M. Armugam, AIR 1969 SC 101; State of Orissa v. Dhaniram Luhar, (2004) 5 SCC 568: (2008) 2 SCC (Cri) 49; State of Uttaranchal v. Sunil Kumar Singh Negi, (2008) 11 SCC 205: (2008) 2 SCC (L8S) 1093; Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity, (2010) 3 SCC 732;

Sant Lai Gupta v. Modem Coop. Group Housing Society Ltd., (2010) 13 SCC 336: (2010) 4 SCC (Civ) 904; City Improvement Trust Board v. H. Narayanaiah, (1976) 4 SCC 9; Basayya I. Mathad v. Rudrayya S. Mathad, (2008) 3 SCC 120, followed       

CIVIL PROCEDURE CODE, 1908

— Or. 41, R. 27 — Additional evidence at appellate stage .

Under Or. 41, R. 27 a court of appeal may allow a document to be'produced or witness to be examined in order to enable it to pronounce judgment or for any other substantial cause. Additional evidence is allowed to be produced for the requirement of the court and not to enable a party to make good a deficiency in his case. By the rule it Is expressly enacted that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. Plainly the application for production of the additional evidence does not fall within the terms of Or. 41, R. 27. Maganlal Bhikamchand Mehar v. Mulchand Jawarmal Nahar, C.A. No. 1325 of 1966.

CIVIL PROCEDURE CODE, 1908

— Or. 41, R. 27 — Additional evidence at appellate stage —

Permissibility .

Additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage, and to fill in gaps. Or course, the position is different where the appellate court itself requires certain evidence to be adduced in order to enable it to do justice between the parties. State ofU.P. v. Manbodhan Lai Srivastava , AIR 1957 SC 912 : 1958 SCR 533 : (1958) 2 LU 273.

Bench Strength 5. Coram : S.R. Das, C.J. and T.L. Venkatarama Aiyar, B.P. Sinha, J.L. Kapur and A.K. Sarkar, JJ. [Date of decision : 20-9-1957]

Followed In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 at p. 168

When A Statute Requires Anything To Be Done By A Statutory Authority Or A Government Officer Within A Prescribed Period And The Citizen Has No Control Over The Statutory Authority Or The Government Officer Requiring Him To Do The Thing Within The Specified Time, The Provision Of A Statute Or Rule Requiring The Thing To Be Done Within The Specified Time Must Be Held To Be Directory

It is trite to say that when a statute requires anything to be done by a statutory authority or a government officer within a prescribed period and the citizen has no control over the statutory authority or the government officer requiring him to do the thing within the specified time, the provision of a statute or rule requiring the thing to be done within the specified time must be held to be directory. This is because the citizen has no control over the statutory authority or the government officer and he cannot suffer from the negligence of the statutory authority or the government officer in failure to perform the duty within the specified time. 

This principle was enunciated by the Constitution Bench of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay 1952 AIR 181, 1952 SCR 612, wherein Das J. observed:

In my opinion, this contention of the learned Attorney-General must prevail. It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the practice of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done.

Dadasaheb Arjun Gulve vs The State Of Maharashtra And Ors.

Citation: 2008 (2) BomCR 712

20 December, 2007

Bombay High Court
Author: D Karnik J.
Bench: S Mhase, D Karnik J. J.

How Many Times a Cheque can be Presented

“ A cheque can be presented any number of times during the period of its validity by payee. On each presentation of the cheque and its dishonour a fresh right – and not cause of action – accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under Cl (b) of Sec. 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the cheque.”

AIR 1998 SUPREME COURT 3043

Courts Not to Insist on Attendance of Public Functionaries : Supreme Court

Holding that the trust and faith reposed in the judiciary should not be allowed to be frittered away, the Supreme Court in a recent decision [State of U.P. & Ors. v. Jasvir Singh & Ors.] has declared that directions by the Court for ensuring attendance of public functionaries in Courts should be exceptional and not the norm of the day. Holding that "requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly", the Supreme Court served an apt reminder to the Courts to exercise their powers with caution.


The Court inter alia observed as under;

    6. The fact that the issue relating to increase of compensation is pending in appeals before the High Court in pursuance of the order of remand by this Court, is not in dispute. The quantum of compensation will have to be decided in those appeals and not in a writ petition. As on date, there is no order either in the appeal or the writ petition determining any amount (other than what was awarded by the Reference Court) as due to the respondents. The contention and prayer of the respondents in the writ petition that fresh notifications should be issued regarding the acquisitions and the compensation should be determined with reference to the current rates as on the date of such fresh notification and not as on 18.8.1981, is a matter that is yet to be decided in the writ petition. As both the writ petition and the appeals are pending, it cannot be said that there is any delay on the part of the state government or its officers in effecting payment of compensation. The delay at present is in fact on account of the pendency of the matters before the High Court. If the High Court was of the view that the matter was getting unnecessarily delayed, or that any injustice had been caused to the land owners, it ought to have heard the writ petition finally and decided the dispute on merits instead of listing the matter on several days and asking different senior officers of the state government to be present and virtually intimidate them to agree for a settlement by paying compensation at current market value instead of with reference to 18.8.1981. The procedure and method adopted by the Division Bench of the High Court, to say the least, is improper and requires to be deprecated.

    7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications. The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

    8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power. Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the pleadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents. Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position .

    9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it. At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices. The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

    10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self-regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims. It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety. 

    11. In this context we may refer to the following observations of this court in State of Gujarat vs. Turabali Gulamhussain Hirani - 2007 (14) SCC 94 :

        "A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the Government (Central and state), Directors General of Police, Director-CBI or BSF or other senior officials of the Government. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the top of a hat. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counterproductive and may also involve heavy expenses and valuable time of the official concerned. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to Government, Commissioners, District Magistrates, senior police officials, etc. are extremely busy persons who are often working from morning till night."

    12. On the facts and circumstances, the interim directions of the Division Bench of the High Court, issued while dealing with a writ petition challenging the acquisition, requiring the Principal Secretary (PWD), Principal Secretary (Finance) or Principal Secretary (Revenue) to be present on different dates, are improper and are liable to be interfered.

Courtesy:  http://legalperspectives.blogspot.in/search/label/Practice%20and%20Procedure