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Rana Radhika   22 September 2021

additional evidence

can more evidence produced in appeal from order ?


 6 Replies

minakshi bindhani   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!

Regards
Minakshi Bindhani

Kevin Moses Paul   22 September 2021

As per your concern let me tell you that Rule 27 Order XLI of Code of Civil Procedure 1908 "Production of additional evidence in Appellate Court" provides that (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.

Moreover, the Supreme Court also 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.

Hope It Helps!

Regards,
Kevin M. Paul

Shubham Bhardwaj (Practice)     22 September 2021

Dear Ms Radhika, What I could understand from your query is that you want to know if additional evidence can be filed in Appeal proceedings. Yes, it can be filed however it is courts discretion, whether to allow additional evidence or not. Practically, when an Application for additional evidence is filed the applicant must show to the court that the document proposed to be produced was not available with him/her or that the trial did not allow the applicant to produce it at the trial stage. Regards Shubham Bhardwaj (Advocate) District & Session Court, Chandigarh Punjab & Haryana High Court, at Chandigarh Disclaimer:- Opinion is only for guidance.

Dr. J C Vashista (Advocate and Legal Consultant)     23 September 2021

Additional evidence can be submitted which may or may not be permitted/ accepted by appellate court.

G.L.N. Prasad (Retired employee.)     23 September 2021

If new facts emerge after such judgment/order, or if any document was suppressed by the parties in the suit, the Appellate court may permit such evidence if submitted as ASMP and after hearing the other parties' objections.

Rana Radhika   23 September 2021

Got It , thank you to everyone for clearing the concept.
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