ADDITIONAL EVIDENCE IN APPEALLATE STAGE

INTRODUCTION:

Section 107 CPC enables an appellate Court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are enunciated under Order 41, Rule 27 of the Code of Civil Procedure,1908. Some key underlying principles for the admission of additional evidence under ORDER 41 Rule 27 of CPC are; (1) The party  seeking  the  admission  of  additional evidence should be able to establish that such additional evidence could  not have  been  adduced at the  first instance with  the best efforts; 2. The party affected by  admission of  additional evidence should have an opportunity to rebut it; 3. Further,  additional  evidence must be relevant for the determination of the matter in issue. 4. Another important condition is such that The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted.

In Mylapuram Krishna Reddi (died) Mylapuram Butchi Reddi and another Vs Thota Yaganti Reddi and others – 1954 (1) ALT 187 , applicability of Order 41 Rule 27 of CPC has been explained. In State of U. P. Vs. stav Manbodhan Lal Srivaa, 1958 (1) SCJ 150 (L.B), it was observed that 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; it should be proved that the evidence sought to be let in was not available at the trial. Recently, the Hon’ble Full Bench of the Supreme Court in Sopanrao and another Vs. Syed Mehmood and others, 2019 (6) ALT – SC- 71 -FB , held that at this stage, it would be pertinent to point out that the appellants/defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier and do not meet the requirements of Order XLI Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected and the documents cannot be taken into consideration.

Once a document has been admitted without objection, such objection could not be taken at the appellate stage. :

In Vinay Eknath Lad Vs. Chiu Mao Chen, 2020 (1) ALT SURPEME COURT 1 , the Hon’ble Supreme Court held that The documents through which the plaintiffs claim to have come to own the property were not adequately stamped and for that reason, such document could not be relied upon. To this argument of the defendant, stand of the plaintiffs has been that once a document has been admitted without objection, in view of Section 35 of the Karnataka Stamp Act (a provision similar to Section 36 of the Indian Stamp Act,1899) such objection could not be taken at the appellate stage. The case of Dr. Chiranji Lal (D) (supra) v. Haridas 2005 SCC 746 was cited on behalf of the defendant. But we need not enter into this controversy while examining the rival claims in this appeal as the document which was effectively made exhibit and relied upon, is exhibit P5. This document came into existence after filing of the suit. We are to determine the position as it subsisted prior to the institution of the suit and existence of this document in isolation does not have any impact on the case of either of the parties.

Procedure in deciding appeal on filing of additional evidence:-

In Palla Aruna Vs. Botta Seetharnma (Died) and another,, 2019 (5) alt Page 194 ,  it was observed thatAfter hearing both the learned counsel and after considering the law on the subject, this Court is of the opinion that the Court below has overlooked the provisions of Order 41 Rule 28 and 29 of CPC. Order 41 Rule 28 of CPC clearly states that where additonal evidence is allowed to be produced the appellate  Court may (a) either take evidence directly or (b) direct the trial Court or any other subordinate Court to record the evidence and send it back to the appellate Court. Rule 29 further clarifies by stating that the appellate  Court should specify the point to which the evidence is to be confined. In fact, the Hon’ble Supreme Court of India in The Corporation of Madras case (5 supra) also held that the appellate Court has an option of taking the evidence by itself or remitting the case to the trial Court for a limited trial on a particular issue. However, in that case as the appellate Court did not give an opportunity to the opposite party to file any rebuttal evidence to counter the additional evidence the Hon’ble Supreme Court of India held prejudice was caused. Therefore, the Hon’ble Supreme Court of India remanded the matter under Order 41 Rule 23-A of CPC and ordered a trial.

Duty of the Appellate Court:

In R.S. Anjayya Gupta Vs. Thippaiah Setty and others, 2019 (4) ALT (SC), the Apex court  observed that In another recent decision in C. Venkata Swamy (supra), once again this Court reiterated the settled legal position regarding the purport of power of the appellate court coupled with its duty, under Section 96 of the Code, while deciding the first appeal, by adverting to decisions in Kurian Chacko v. Varkey Ouseph (15) AIR 1969 Kerala 316, Santosh Hazari (supra), H.K.N. Swami (supra), Jagannath v. Arulappa and another (16) (2005) 12 SCC 303 (paragraph No.2), B.V. Nagesh and Another v. H.V. Sreenivasa Murthy (17) (2010) 13 SCC 530 (paragraph Nos.3 and 5), S.B.I. (supra) and Union of India v. K.V. Lakshman and others (18) (2016) 13 SCC 124. The court, even in this reported case relegated the parties before the High Court for reconsideration of the first appeal afresh.

In Ch. Venkateswara Rao (died on 1-9-2001) and others Vs. Edavalli Raji Reddy and others, 2019 (1) ALT PAGE 527, it was held that the lower appellate ourt without marking additional evidence document by recording evidence, additional evidence if any with reference to it discussed the same which is not at all correct and an unmarked document even received as additional evidence placing reliance in its discretion as if proved is highly uncalled-for and unknown to law, though otherwise for the first appellate Court being the final fact finding Court the entire matter is at large Further the lower appellate court did not give any reasons as to why the plaintiff kept quiet if at all dispossessed in 1974 till filing of the suit in the end of April 1984 and if so when not in possession where is the question of giving credence to the pahanies under Exs.A4 to A6 of the years 1970-71 to 1973-74 particularly without even date and month mentioning when in 1974 dispossessed and how in 1973-74 pahani possession recorded There is no discussion by the lower appellate Court of the same was made out and therefrom to say burden shifted on the defendants to rebut The lower appellate Court no doubt has to keep in mind that mere possibility of another view itself is not a ground for setting aside the trial Courts judgment, unless there is specific finding as to where the trial Court erred in its finding and arriving a conclusion to interfere therewith in arriving final result with reference to any such interference with specific finding from the entire matter at large, including under Order 41 Rule 33 CPC Having regard to the above, the Second Appeal is allowed and the lower appellate Courts judgment is set aside and the matter is remitted back to the lower appellate Court to give fresh disposal by properly formulating the relevant points for consideration including as to any requirement of additional evidence. (See. Para 10 to 12) .

Appellate court should not travel outside the record of the lower court :-

• Appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal 
• As an exception, Order 41 Rule 27 CPC enables the Appellate court to take additional evidence in exceptional circumstances
• Parties are not entitled, as of right, to the admission of such evidence.
• This was held in Valisetti Beekam Vijaya Vs. Telangana State Road Transport Corporation, 2020 (1) An.w.r. 51.

Additional evidence at the appellate stage:

When the first appellate Court is satisfied that additional evidence is not required, the High Court ought not to have interfered with such order. See. Mahavir Singh and others vs. Naresh Chandra and another, 2001 (1) ALT (SC) 60. 

Conclusion:- As seen from the above case-law, under the general rule, the Appellate Court should not admit additional evidencefor 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. However, the Code of Civil Procedure,1908, under Order 41 Rule 27 of CPC empowers an appellate court to take additional evidence subject to certain conditions, a fortiori, the power is discretionary and must be exercised on sound judicial principles.