POWER OF APPELLATE COURT UNDER SECTION 107 (1) (d) AND

ORDER XLI RULE 27-29

6.4 CIVIL PROCEDURE CODE

Submitted by
KRISHNA KANT JAIN
UID No.- SM0115022
Third Year Sixth Semester

National Law University and Judicial Academy, Assam

 Table of Contents
Table of Cases.................................................................................................................................ii

Table of Statutes.............................................................................................................................iii

Table of Abbreviations...................................................................................................................iii

Introduction......................................................................................................................................1

Aim..................................................................................................................................................2

Objectives........................................................................................................................................2

Scope and Limitation.......................................................................................................................2

Review of Literature........................................................................................................................2

Research Questions..........................................................................................................................2

Research Methodology....................................................................................................................3

Appeal and Additional Evidence..................................................................................................3

Miscarriage of Justice....................................................................................................................4

Conclusion.....................................................................................................................................10

Bibliography....................................................................................................................................v

i
Table of Cases
1. Arjan Singh v. Kartar Singh
2. Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors
3. Dayawati v. Inderjit
4. Dinesh Kumar v. Yusuf Ali
5. Dutt v. Land Acquisition Collector & Anr.
6. Gadikapati v. Subbaiah Chowdary
7. Ganga Bai v. Vijay Kumar
8. Ganga Gobind Mundul v. Collector of Twenty-four Pergunnahs
9. Gulabbai v. Nalin Narsi Vohra
10. Indirajit Pratab Sahi v. Amar Singh
11. Jagdish Singh v. Nathu Singh
12. Jaipur Development Authority v. Kailashwati Devi
13. K. R. Mohan Reddy v. Net Work Inc
14. K. Venkataramaiah v. A. Seetharama Reddy
15. Kalyan Singh Chouhan v. C.P. Joshi
16. Kamal Ranjan v. Baijnath Bajoria
17. Kessowji Issur v. Great Indian Peninsula Railway co.
18. Mahant Dhangir v. Madan Mohan
19. Messrs. Trojan & Co. v. RM.N.N. Nagappa Chettiar
20. Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd
21. Mt. Bilas Kunwar v. Desraj Ranjit Singh
22. Municipal Corpn. Of Greater Bombay v. Lala Pancham
23. Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & Anr
24. N. Kamalm v. Ayyasamy
25. Natha Singh v. Financial Commr.
26. Official Liquidator v. Raghwa Desikachar
27. Om Prakash Gupta v. Ranbir B. Goyal
28. Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors.
29. Ragavendra Kumar v. Firm Prem Machinary & Co.
30. Satya Gupta (Smt.) Madhu Gupta v. Brijesh Kumar
31. Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi
32. Shivchander Kapoor v. Amar Bose
33. Smt. Prativa Devi (Smt.) v. T.V. Krishnan,
34. State of Maharashtra v. M/s. Hindustan Construction Company Ltd
35. Sumitra v. Maharaju
36. Union of India v. Ibrhim Uddin

ii
Table of Statutes
1908- Civil Procedure Code

Table of Abbreviations
1. AIR All India Report

2. Art. Article

3. AP Andhra Pradesh

4. CPC Civil Procedure Code

5. Co. Company

6. ed. Edition

7. Ori. Orissa

8. Sec. Section

9. SCR Supreme Court Report

10. SCC Supreme Court Cases

iii
 ABSTRACT
As a general rule, the Appellate Court should not admit additional evidence for the purpose of
the disposal of an appeal, and the parties are not entitled to produce additional evidence,
whether oral or documentary in the appellate court. Sub-rule I of Rule 27 also reads thus “The
parties to an appeal shall not be entitled to produce additional evidence, whether oral or
documentary, in the appellate court.” The Code, however under this rule empowers an appellate
court to take additional evidence subject to certain conditions. The power is discretionary and
must be exercised on sound judicial principles and in the interest of justice.

iv
Introduction
“The provisions of S.107 as elucidated by O.41, R.27 are clearly not intended to allow a litigant
who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up
omissions in the Court of appeal. Under R.27, Cl. (1) (b) it is only where the appellate Court
“requires” it (i.e. finds it needful). …… The legitimate occasion for the exercise of this
discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence,
but “when on examining the evidence as it stands, some inherent lacuna or defect becomes
apparent”, it may well be that the defect may be pointed out by a party, or that a party may move
the Court to apply the defect, but the requirement must be the requirement of the court upon its
appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R.
27(2) to record its reasons for so doing, and under R.29 must specify the points to which the
evidence is to be confined and record on its proceedings the points so specified. The power so
conferred upon the Court by the Code ought to be very sparingly exercised and one requirement
at least of any new evidence to be adduced should be that it should have a direct and important
bearing on a main issue in the case…”1

 The parties to an appeal shall not be entitled to produce additional evidence in the appellate
court unless the conditions stipulated under Order 41 Rule 27 Code of Civil Procedure as trial
court had refused to admit the said evidence which ought to have been admitted. If Appellant
that the evidence was not within his knowledge or could not, after the exercise of due diligence,
can be produced by him during pendency of the suit before the trial court. On the other hand, it is
vehemently contended that the said evidence was filed but was omitted to be tendered in
evidence and got exhibited in the suit. If the lower appellate court elaborately considers the
factual matrix and not satisfied any of the conditions stipulated under Order 41 Rule
27 hence not entitled to produce additional evidence

1
Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128 See also: Parsotim Thakur & Ors. v. Lal Mohar Thakur &
Ors., AIR 1931 PC 143

1
Aim
The aim of this research project is to understand the admissibility of evidence in appellate court
under section 107 (1) (d) and Order LXI Rule 27-29.

Objectives
The objectives of this project are:

1. To understand the power of appellate court

2. To understand the condition of admissibility of additional evidence.

Scope and Limitation

The scope of this project is limited to the power of appellate court under section 107 (1)(d) and
Order 41 rule 27-29 of Civil Procedure Code.

Review of Literature
Dinshaw Fardunji Mulla, THE CODE OF CIVIL PROCEDURE, 18 th ed. 2011, Lexis Nexis
Butterworths.

This book provides the broad view on the concept of Power of Appellate court. It Provide the
commentary of the concept section and order wise. It help author to understand the depth
analysis on review and revision provision under this code. It provides the various grounds for
exercising jurisdiction of review and revision by respective court. Last but not the least it
enlightens the various judgement regarding the concept.

C.K. Takwani, CIVIL PROCEDURE CODE WITH LIMITAITON ACT, 1963 8 th ed. 2017,
Eastern Book Company

This book helps the author to understand provisions relating to section 107 and Rule 27-29. It
gives the brief but in-depth analysis of each and every concept. This book gives the clear
understanding of the concept. This book explains the concept with the help of good no. of case
laws.

Research Questions
1. What is the power of appellate court under section 107
2. What are the conditions of admissibility of additional evidence.

2
Research Methodology
Researcher conducted Doctrinal type of research to collect proper data and gather appropriate
information. The use of library sources and internet sources has greatly supplemented the
research. Various books pertaining to the subject have been immensely helpful in guiding the
research.

To ensure a quality study of the subject matter, the researcher collected Primary as well as
Secondary type of data. Though primary data is very valuable and precious; still the importance
of the secondary data cannot be overlooked. So, the researcher collected primary data (cases)
from various online research journals like SCC online and Manupatra and secondary data
through various books, articles, journals and other sources.

Appeal and Additional Evidence

The expression 'appeal' has not been defined in the Code of Civil Procedure, but it may be
defined as “the judicial examination of the decision by a higher court of the decision of an
inferior court”. as stated -

“There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no
doubt that any application by a party to an appellate court, asking to set aside or reverse a
decision of a subordinate court, is an appeal within the ordinary acceptation of the term. It means
removal of a cause from an inferior court to a superior court for the purpose of testing the
soundness of the decision of the inferior court. It is thus a remedy provided by law for getting the
decree of the lower court set aside. In other words, it is a complaint made to the higher court that
the decree passed by the lower court is unsound and wrong. It is a right of entering a superior
court and invoking its aid and interposition to redress an error of the court below”.

There is a fundamental distinction between the right to file a suit and the right to file an appeal.
The said distinction has been appropriately explained by the Hon'ble Supreme Court in Ganga
Bai Vs Vijay Kumar2 in the following words:

2
AIR 1974 SC 1126

3
        “There is a basic distinction between the right of suit and right of appeal. There is an
inherent right in every person to bring a suit of a civil nature and unless the suit is barred by
statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever
frivolous the claim, that the law confers no such right to sue.

An appeal is a continuation of a suit as observed by the Hon'ble Supreme Court in Gadikapati Vs

Subbaiah Chowdary3. A decree passed by an appellate court would be construed to be a decree
passed by the appellant court for the first instance. An appeal is virtually a hearing of the matter.
The appellate court possesses the same powers and duties as the original court. In Dayawati Vs
Inderjit4 speaking for the Hon'ble Supreme Court, Justice Hidayatullah stated as follows:

 “An appeal has been said to be 'the right of entering a superior court, and invoking its aid and
interposition to redress the error of the Court below'. The only difference between a suit and an
appeal is that an appeal 'only reviews and corrects the proceedings in a cause already constituted
but does not create the cause”.

 In Garikapati Vs Subbaiah Chowdary5 the Hon'ble Supreme Court referring to various leading
decisions on the subject laid down the following principles relating to a right of appeal:

(i)     That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a
series of proceedings all connected by an intrinsic unity and are to be regarded as one legal
proceeding.

(ii)    The right of appeal is not a more matter of procedure but is a substantive right.

“It is open to a litigant to refrain from producing any document that he considers irrelevant; if the
other litigant is dissatisfied, it is for him to apply for interrogatories/inspections and production
of documents. If he fails to do so, neither he nor the Court at his suggestion, is entitled to draw
any inference as to the contents of any such documents.6

Miscarriage of Justice
“..... that miscarriage of justice means such a departure from the rules which permeate all judicial
procedure as to make that which happen not in the proper sense of the word ‘judicial procedure’
3
AIR 1957 SC 540
4
AIR 1966 SC 1423
5
AIR 1957 SC 540
6
Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96

4
at all. That the violation of some principles of law or procedure must be such erroneous
proposition of law that if that proposition to be corrected, the finding cannot stand, or it may be
the neglect of some principle of law or procedure, whose application will have the same effect.
The question whether there is evidence on which the Courts could arrive at their finding, is such
a question of law.

‘That the question of admissibility of evidence is a proposition of law but it must be such as to
affect materially the finding. The question of the value of evidence is not sufficient reason for
departure from the practice......”

There is no prohibition to entertain a second appeal even on question of fact provided the Court
is satisfied that the findings of the courts below were vitiated by non-consideration of relevant
evidence or by showing erroneous approach to the matter and findings recorded in the court
below are perverse.7

Declaration of relief is always discretionary. If the discretion is not exercised by the lower court
“in the spirit of the statute or fairly or honestly or according to the rules of reason and justice”,
the order passed by the lower court can be reversed by the superior court.8

There may be exceptional circumstances where the High Court is compelled to interfere,
notwithstanding the limitation imposed by the wording of Section 100 CPC. It may be necessary
to do so for the reason that after all the purpose of the establishment of courts of justice is to
render justice between the parties, though the High Court is bound to act with circumspection
while exercising such jurisdiction. In second appeal the court frames the substantial question of
law at the time of admission of the appeal and the Court is required to answer all the said
questions unless the appeal is finally decided on one or two of those questions or the court comes
to the conclusion that the question(s) framed could not be the substantial question(s) of law.
There is no prohibition in law to frame the additional substantial question of law if the need so
arises at the time of the final hearing of the appeal. In Kalyan Singh Chouhan v. C.P. Joshi 9, after

7
Jagdish Singh v. Nathu Singh, AIR 1992 SC 1604 see also: Smt. Prativa Devi (Smt.) v. T.V. Krishnan, (1996) 5
SCC 353; Satya Gupta (Smt.)  Madhu Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Ragavendra Kumar v. Firm Prem
Machinary & Co., AIR 2000 SC 534; Molar Mal (dead) through Lrs. v. M/s. Kay Iron Works Pvt. Ltd., AIR 2000
SC 1261; Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., AIR 2010 SC 2685; and Dinesh Kumar v.
Yusuf Ali, (2010) 12 SCC740.
8
Mysore State Road Transport Corporation v. Mirja Khasim Ali Beg & Anr., AIR 1977 SC 747
9
AIR 2011 SC 1127

5
placing reliance on a very large number of its earlier judgments including Messrs. Trojan & Co.
v. RM.N.N. Nagappa Chettiar10, Om Prakash Gupta v. Ranbir B. Goyal 11, Ishwar Dutt v. Land
Acquisition Collector & Anr.12 and State of Maharashtra v. M/s. Hindustan Construction
Company Ltd.,13 held that relief not founded on the pleadings cannot be granted. A decision of a
case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible
to be taken on record in absence of the pleadings in that respect. No party can be permitted to
travel beyond its pleading and that all necessary and material facts should be pleaded by the
party in support of the case set up by it. It was further held that where the evidence was not in the
line of the pleadings, the said evidence cannot be looked into or relied upon.

The term “additional evidence” does not mean evidence over and above the evidence led by the
party in the lower court. Such a view would be introducing an additional condition not
contemplated by the code. There should be no distinction between a party who has led some
evidence and a party who has not led evidence at all. All that is required is that the conditions
laid down in the code for leading of additional evidence must be fulfilled.14

The basic principle of admission of additional evidence is that the person seeking the admission
of additional evidence should be able to establish that with the best efforts such additional
evidence could could not have been adduced at the first instance. Secondly, the arty affected by
the admission of additional evidence should have an opportunity to rebut such additional
evidence. Thirdly, the additional evidence must be relevant for the determination of the issue.15

When a party is unable to produce the evidence in the trial court under the circumstances
mentioned in the code, he should be allowed to produce the same in an appellate court. The
power is discretionary and should be exercised on sound judicial principle and in the interest of
justice.16

10
AIR 1953 SC 235
11
AIR 2002 SC 665
12
AIR 2005 SC 3165
13
AIR 2010 SC 1299
14
Jaipur Development Authority v. Kailashwati Devi (1997) 7 SCC 297
15
Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227, see also: N. Kamalm v. Ayyasamy
(2001) 7 SCC 503
16
Arjan Singh v. Kartar Singh, AIR 1951 SC 193; Natha Singh v. Financial Commr. (1976) 3 SCC 28; Union of
India v. Ibrhim Uddin (2012) 8 SCC 148

6
Rule 27 enumerates the circumstances in which the appellate court may admit additional
evidence, whether oral or documentary, in appeal. They are as under17

I. Where the lower court has improperly refused to admit evidence which ought to have
been admitted; or
II. Where such additional evidence was not within the knowledge of the party or could
not, after exercise of due diligence, be produced by him at the time when the lower
court passed the decree; or
III. Where the appellate court itself requires such evidence either (a) to enable it to
pronounce judgement; or (b) for any other substantial cause.

In Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi18 the supreme court stated, “ the
basic principle of admission of additional evidence is that the person seeking the admission
of additional evidence should be able to establish that with the best efforts such additional
evidence could not have been adduced at the first instance. Secondly, the party affected by
the admission of additional evidence. Thirdly, that additional evidence was relevant for the
determination of the issue.”

In K. R. Mohan Reddy v. Net Work Inc.19 the supreme court stated that clauses (a), (aa) and
(b) of Rule 27(1) refers to three situations. For exercising jurisdiction thereunder, the
appellate court must record a finding that one or the other condition of Rule 27(1) is satisfied.

I. Improper refusal to admit evidence – Where the lower court has refused to admit evidence
which was tendered and which ought to have admitted, the apprllate court may admit such
evidence at the appellate stage20. The expression ‘ought to have been admitted’ means
should be admitted in the exercise of sound discretion. 21 The appellate court, therefore,
before admitting additional evidence must be satisfied that the trial court was unjustified in
refusing to admit such evidence.

17
Rule 27 (1) (a), (aa), (b)
18
(1987) 1 SCC 227
19
(2007) 14 SCC 257
20
Official Liquidator v. Raghwa Desikachar (1974) 2 SCC 741
21
Sumitra v. Maharaju AIR 1963 HP 21

7
 Thus where the lower court has refused to take certain evidence on the ground of its late
production, such rejection cannot be said to be unjustified and the appellate court should not
interfere with the discretion of the lower court and admit such evidence.
II. Discovery of New Evidence- Clause (aa) of Sub-rule (1) of Rule 27, inserted by the
amendment Act of 1976, empowers the appellate court to receive additional evidence at the
appellate stage if the party seeking to produce additional evidence satisfies the court that, in
spite of the exercise of due diligence, such evidence was not within his knowledge or could
not be produced by him when the decree was passed against him.22
One of the basic principles of admission of additional evidence is that the person seeking
admission of additional evidence should establish that in spite of due diligence such
evidence could not be produced at the first instance. 23 The provision, however, is not
confined to cases where the parties have adduced some evidence in the lower court. Even if
he has not adduced any evidence before the trial court, additional evidence can be permitted
by the appellate court if the condition laid down in clause (aa) of Rule 27 (1) of Order XLI
are satisfied.
III. Requirement by appellate court. – The appellate court may itself require additional
evidence for either of the two purposes: (a) to enable it to pronounce judgement; or (b) for
either of the tow purposes (a) to enable it to pronoune judgement; (b) for any other
substantial cause.24
The requirement must be of the appellate court. “the legitimate occasion for the application
of the present rule is when, on examining the evidence as it stands, some inherent lacuna or
defect become apparent, not where a discovery is made outside the court of such evidence
and the application is made to import it.”25 Thus, subsequent event scab be considered by the
court.26 But a matter canno be remanded for allowing a party to adduce additional evidence
when such evidence was available and yet not produced in the lower court.27

22
Shivchander Kapoor v. Amar Bose (1990) 1 SCC 234
23
Supra note 15
24
Kamal Ranjan v. Baijnath Bajoria, AIR 1951 SC 1
25
Kessowji Issur v. Great Indian Peninsula Railway co. ILR (1907) 31 Bom 381
26
Gulabbai v. Nalin Narsi Vohra (1991) 3 SCC 483
27
K. Venkataramaiah v. A. Seetharama Reddy AIR 1963 SC 1526

8
 The true test, therefore, is whether the appellate court is able to pronounce judgement on the
material before it without taking into consideration the additional evidence sought to be
adduced.
Similarly, the appellate court may admit additional evidence “for any sufficient cause”. An
application of additional evidence must be disposed of before pronouncing judgement. The
expression any substantial cause should be liberally construed so as to advance substantial
justice between the parties. Thus the additional evidence may be required to anble the court
to pronounce judgement; or for any other substantial cause, but, in either case, it must be the
court which requires it. A mere difficulty in coming to a decision is not sufficient for
admission of evidence under Rule 27.
The words “for any other substantial cause” must be read with the word “requires” which is
set out at the commencement of the provision, so that it is only where, or any other
substantial cause, the appellate court requires additional evidence, that this rule will apply.
The defect may be pointed out by a party, or that a party may move the court to supply the
defect, but the requirement of the court upon its appreciation of the evidence as it stands.
The provision of Rule 27 are not intended to allow a litigant who has case and to fill in gaps.
The expression “to enable it (appellate court) to pronounce judgement” means when the
appellate court finds itself unable to pronounce judgement owing to a lacuna or defect in the
evidence as it stands. The ability to pronounce a judgement satisfactory to the mind of the
court delivering it.
The provision of rule 27 have not been engrafted in the code so as to patch up weak points
by the rule party in the case and to fill up the omission in the court of appeal. It does not
authorize any lacunae or gaps in evidence by a party to be filled up. The authority and
jurisdiction as conferred on the appellate court to allow fresh evidence is restricted. It does
not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing
judgement in a particular way.28

Recording of Reason
Whenever the applellate court admits additional evidence, it should record reasons for doing
it. The underlying object of this provision is to keep a clear record of what weighed with the

28
Municipal Corpn. Of Greater Bombay v. Lala Pancham AIR 1965 SC 1008

9
 appeallate court in allowing the additional evidence to be produced. As observed by their
Lordships of the Privy Council, “It is a salutary provision, which operates as check against a
too easy reception of evidence at a late stage of the litigation, and the statement of the
reasons may inspire confidence and disarm objection.”29
Again, where a further appeal lies from the decision of the appellate court, recording of
reasons is necessary so as to enable the higher court to decide whether the discretion under
the rule has been judicially exercised by the court below. The omission to record reasons,
therefore, must be treated as serious defect 30. The provision, however is directory and not
mandatory, and failure to record reasons does not take the evidence inadmissible if the
reception of such evidence is otherwise justified under the rule31.

Mode of taking additional evidence

Rule 28 and 29 lays down the mode of taking additional evidence when the appellate court
admits additional evidence in appeal. The appellate court may take the evidence itself or
direct the lower court from whose decree the appeal is preferred or any other subordinate
court to take it. Where the appellate court directs the lower court to record evidence, it
should retain the appeal on its file and dispose it of on receipt of the additional evidence.

Conclusion

There is the settled law and duty of the court that any case should be decided by the court
considering all facts, evidence, law on four corners. Nothing is to be left undecided at
preliminary stage. So there is no need to appeal, review of the case. It is pertinent to mention
here that if party being innocent due to his omission at his own part, bear heavy loss or get
punished some time without guilty due to lack of decision of lower court in case he is not
able to appeal where he found guilty. Due to this lack and negligence, party lost his valuable
time and money in filing appeal. In this extent the party in question is not excused for his
part of omission even being innocent and held liable to pay omission / lack if they do not file
an appeal where are so much chances to hold not guilty, but another side the court being

29
Ganga Gobind Mundul v. Collector of Twenty-four Pergunnahs (1867) II MIA 345
30
Mahant Dhangir v. Madan Mohan 1987 Supp SCC 528
31
ibid

10
perfect in all respect does not hold responsible for their lack or negligence as there is no
provision for that.

11
Bibliography

List of Books:
Dinshaw Fardunji Mulla, THE CODE OF CIVIL PROCEDURE, 18th ed. 2011, Lexis Nexis
Butterworths, Gurgaon.
C. K. Takwani, CIVIL PROCEDURE CODE WITH LIMITATION ACT, 1963, 8th ed. 2017,
Eastern Book Company, Lucknow.

V. G. Ramchandran, LAW OF WRITS, 5th ed. 2006, EBC Web Store, Bangalore.

Lists of Websites

https://www.worldlawcentre.com/legal-articles/additonal-evidence-at-appellate-stage-civil-
procedure-code-1908-fair-copy-/x3215778e79g6565539gra7roshd53lf8fsej6

http://ecourts.gov.in/sites/default/files/PaperpresentationWS-III.pdf

http://lawtimesjournal.in/powers-duties-appellate-court/