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Scope of Adducing Additional Evidence at Appellate Stage

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The general principle is that appellate courts should not travel beyond the record of the lower court and cannot take any evidence in appeal. However, as an exception, Section 107(d) read with Order XLI rule 27 of Code of Civil Procedure, 1908(hereinafter referred as the Code) enables the appellate court to take additional evidence in exceptional circumstances. 

Section 107 of the Code provides powers of appellate court wherein 107(d) provides that Appellate Court shall have power to take additional evidence or to require such evidence to be taken subject to conditions and limitations prescribed as may be prescribed.

Order XLI rule 27 of the Code provides certain conditions where the Appellate Court may receive evidence which are as follows:-

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 —

  1. the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
  2. 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
  3. 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.

The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled as of right to admission of such evidence and the matter is entirely within discretion of the Appellate Court.

Under Order XLI rule 27 the Appellate Court has power to admit both oral and documentary evidence i.e the court may allow a document to be produced or a witness to be examined.

When additional evidence may be admitted?

The mere fact that the evidence is important, is itself not a sufficient ground for admitting that evidence in appeal.

Under clause (1)(a) the appellate court has to see whether the trial judge has improperly rejected the request to record the evidence of the party and consequently the appellate court was justified in directing the additional evidence to be recorded.

Helps the court pronounce judgment satisfactorily

The true test under clause (1)(b) is whether the adduced evidence will be admissible or not at Appellate stage depends on whether such evidence is necessary for court to pronounce a judgment satisfactorily. If the court can pronounce a judgment without the help of fresh evidence satisfactorily such evidence is not admissible at appellate stage. Therefore the fresh evidence must be only for removing a lacuna in the evidence and it is not the business of appellate court to supplement the evidence adduced by one party or the other in the lower court.

Goes to the root of the case

The additional evidence sought to be adduced must remove a cloud of doubt over the case and the evidence has an important bearing on the main issues of the suit and is imperatively necessary in the interest of justice.1 

Factors which may affect the admission of additional evidence

Some unsatisfactory reasons whose presence will not entitle the appellate court to consider fresh evidence are as follows:

  1.  That a party is guilty of remissness in lower court or;2 
  2. The party had ample opportunity to produce certain evidence in lower court but failed to do so or elected not to do so or;3
  3. [That inadvertence of a party or his inability to understand the legal issues involved or;
  4. wrong advice of pleader or;
  5.  That party did not realise the importance of that document or;
  6.  The fresh evidence if considered would lead to a new point in appeal not raised before lower court.]4

What stage of the proceeding additional evidence would be considered?

As stated above, the test to admit additional evidence by appellate court is its bearing on the main issue involved in the suit and the necessity for the court to pronounce a satisfactory judgment. An application under Order XLI Rule 27 should be considered at the time of hearing of appeal on merits (final hearing) because at this stage only the court is able to find whether the evidence sought to be adduced has any relevance on the main issue or not. Similarly the court at this stage only can ascertain if it requires fresh evidence for satisfactory pronouncement of judgment.5

What happens in case the additional evidence is admitted?

Reasons to be recorded in writing

In case the appellate court allows the petition of a party to admit the additional evidence produced before it, the court must record its reasons for doing so as per Sub rule 2 of rule 27 of Order XLI. This provides a check against the arbitrary exercise of power by appellate court as well as operates a check against a too easy reception of evidence at such a late stage of litigation. 

These reasons may be embodied in the judgment of appellate court and need not be recorded in a separate order. However, a mere reference to peculiar circumstances of the case or mere statement that evidence is necessary to pronounce judgment or that additional evidence is required in the interests of justice or there is no reason to reject the prayer for admission of additional evidence is not compliance with requirement of Sub rule 2 of Rule 27 of Order XLI.6

Procedure to be followed

7Once the additional evidence is permitted at appellate stage, the other side must be given opportunity to lead rebuttal evidence to counter additional evidence. The Appellate court has two options:-

  1. The appellate court may remand the whole matter for trial as per Order XLI rule 23A or;
  2. The appellate court may make limited remand under Order XLI rule 25 by retaining main appeal with itself so that parties can lead additional evidence on particular issues and then to decide appeal on merits.

Conclusion

The application for taking additional evidence is not a matter of right of party and is wholly a discretionary power of court. This discretion is to be exercised judicially in the interest of justice within the four corners of the Code. The court has to record the reasons for admitting additional evidence and has to follow the principles of natural justice to ensure a fair trial.

  1. Parsotim Thakur vs Lal Manohar Thakur AIR 1931 PC 143 ↩︎
  2. State of UP vs Manbodhan Lal Srivastava [AIR 1957 SC 912] and S. Rajagoapl vs C.M Armugam [AIR 1969 SC 101] ↩︎
  3. Ibid ↩︎
  4. Union of India vs Ibrahim Uddin, [AIROnline 2012 SC 785, Para 29] ↩︎
  5. Arjan Singh Vs Kartar Singh [AIR 1951 SC 193] ↩︎
  6. Union of India vs Ibrahim Uddin, [AIROnline 2012 SC 785], Para 32 ↩︎
  7. Corporation of Madras vs M Parthasarathy (2018) 9 SCC 445 ↩︎

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Ashish Kumar

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