Does Appellate Court have the power to admit evidence?
Section 107 of the Civil Procedure Code 1908 provides for powers of the appellate courts.
The appellate court under CPC has the following powers:
- To decide the case finally
- To remand the case
- To frame issues and refer them for trial
- To take additional evidence or to require such evidence to be taken
Hence, under Section 107(1)(d) of Civil procedure Code 1908, the Court has the power to take additional evidence at the appellate stage.
What are the conditions under which appellate court may allow the parties to produce additional evidence?
Order 41 Rule 27 of the Civil Procedure Code 1908 further provides conditions on which parties to the appeal may be allowed by the court to produce evidence at the appellate stage.
These conditions are –
- If the trial court which passed the decree refused to admit evidence which ought to have been admitted, or;
- If the party to the appeal is able to establish that such evidence was not within his knowledge or;
- If the party to the appeal is able to establish that despite due diligence, the evidence could not be produced by him at the time when the decree appealed against was passed by the trial court; or
- If the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or;
- If the appellate court requires any document to be produced or any witness to be examined for any other substantial cause.
Does the Appellate Court record reasons for such an exercise?
Whenever the appellate court allows the production of additional evidence before it, it shall record the reason for the admission of such evidence.
The exercise is basically the essence of the principle that reason must be provided in order, as reason is the soul of the order.
What if the case does not fall under the abovementioned conditions?
The Hon’ble Apex Court has held on various occasions that generally, evidence shall not be admitted and Section 107(1)(d) of Civil Procedure Code 1908 carves out an exception for the Court to admit the evidence at the appellate stage.
In the case of North Eastern Railway v. Bhagwan Das, the court observed that additional evidence can only be admitted at the appellate stage if any of the conditions prescribed under Order 41 Rule 27 are found to exist and hold.
Can the Court allow an application to fill the lacunae of evidence?
In the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, it was held by the Apex Court in Para 12 that the parties are not allowed to fill the lacunae at the appellate stage. The Court further observed that it is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27.
What is the principle on basis of which the Court decides its requirement of additional evidence under Order 41 Rule 27(1)(b) of CPC?
In the case of K.R. Mohan Reddy v. Net Work Inc, it was held that the appellate court should not pass an order to patch up the weakness of the evidence of the unsuccessful party before the trial court. The rule of thumb is if the Court requires the evidence to do justice between the parties.
The ability to pronounce judgment means that the judgment must seem satisfactory to the mind of the court. Mere difficulty is not sufficient to issue direction on such an application.
In the case of Union of India v. Ibrahim Uddin and another, it was held that the true test before the Court before requiring the production of additional evidence 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”.
Can Revision or Writ be filed against the order of admission of additional evidence at the appellate stage?
The Hon’ble Supreme Court in various cases has held that revision against admission or non-admission of additional evidence cannot be filed before the High Court as it is not within the powers of the high court under Section 115 of Civil Procedure to decide such issue at an interim stage.
In the case of Mahavir Singh and others v. Naresh Chandra and another, it was held that if the first appellate court did not find any need to allow the application under Order 41 Rule 27 CPC, the High Court should not have interfered in exercise of its powers of revision under Section 115 of Civil Procedure Code 1908.
In the case of Gurdev Singh and others v. Mehnga Ram and another, it was held that if the appellate court has entertained the application under Order 41 Rule 27 of CPC, then the High Court shall not entertain revision against such an order at an interim stage.
In the case of Govind Ballabh Pandey v. A.K Srivastava, it was held by the Hon’ble High Court of Allahabad that it is not proper to look into the merits of the case under writ jurisdiction if the application for taking additional evidence on record is rejected.
What is the remedy if revision or writ petition is not allowed?
Since the revision is not held to be the appropriate remedy, the only remedy left to the aggrieved party is to challenge the appellate decree by means of a second appeal before the second appellate court as in accordance with the law.
In the case of Gurdev Singh and others v. Mehnga Ram and another, it was held that if the order is wrong on merits, then it can be challenged by means of a second appeal.