22 September 2021
As per your query!
The Court observed that under the scheme of Code of Civil Procedure, 1908 (“the Code”) whether oral or documentary, it is the trial Court before whom parties are required to adduce their evidence. But in three exceptional circumstances, additional evidence can be adduced before the Appellate court, as provided under S. 107(1)(d) read with Rule 27 of Order XLI of the Code.
As per Rule 27, which deals with production If additional evidence in Appellate Court, the parties are not entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, unless
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) 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
(c) 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.
whenever additional evidence is allowed to be produced by an Appellate court, the court shall record the reason for its admission.
However, in a Supreme court judgement, it was observed that unless and until the procedure under Order XLI Rules 27, 28 and 29 are followed, the parties to the appeal cannot be permitted to lead additional evidence and/or the appellate court is not justified to direct the court from whose decree the appeal is preferred or any other subordinate court, to take such evidence and to send it when taken to the Appellate court.
Hope it clarifies the issues!