# Bhupendra Singh v. Smt. Namrata Saraswat

- **Citation:** (2026) 4 ILRA 2143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-04-23
- **Case number:** Matters Under Article 227 No. 1527 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhupendra-singh-v-smt-namrata-saraswat-54491
- **Pages:** 22

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4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
2143
(2026) 4 ILRA 2143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.04.2026

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 1527 of 2025

Bhupendra Singh ...Petitioner
Versus
Smt. Namrata Saraswat ...Respondent

Issues for Consideration
(i) Whether an application under Order XLI Rule 27 CPC seeking permission to adduce additional evidence
in appeal can be allowed merely because the evidence is relevant, or only when the conditions prescribed
under clauses (a), (aa) or (b) of Rule 27(1) are satisfied?
(ii) Whether, while exercising power under Order XLI Rule 27(1)(b) CPC, the requirement to adduce
additional evidence must be that of the appellate court itself for enabling it to pronounce judgment or for any
other substantial cause, and not of the party seeking to fill up lacunae in its case?
(iii) Whether an application under Order XLI Rule 27(1)(b) CPC is ordinarily required to be considered at
the stage of final hearing of the appeal after the appellate court has examined the evidence already on
record?
(iv) Whether the lower appellate court committed any jurisdictional error in rejecting the petitioner's
application under Order XLI Rule 27 CPC seeking to produce seventeen documents as additional evidence in
an appeal arising from a suit for specific performance?

Headnotes
Code of Civil Procedure, 1908-Order XLI Rule 27-Additional evidence in appeal-General rule
and exceptions.

HELD: The normal rule is that an appeal is to be decided on the evidence adduced before the trial court.
Production of additional evidence at the appellate stage is an exception and is permissible only in the
circumstances specifically enumerated in clauses (a), (aa) or (b) of Rule 27(1). A party has no vested right to
adduce additional evidence in appeal merely because such evidence may be relevant or useful. The power
under Rule 27 is required to be exercised sparingly and only in exceptional circumstances. [Paras 11 to 24]

Code of Civil Procedure, 1908-Order XLI Rule 27(1)(a), (aa) and (b)-Distinct fields of
operation.

HELD: Clauses (a), (aa) and (b) of Rule 27(1) operate in different fields. Clause (a) applies where the trial
court improperly refused to admit evidence; clause (aa) applies where, despite due diligence, the evidence
was not within the knowledge of the party or could not be produced before the trial court; whereas clause (b)
is attracted only when the appellate court itself requires additional evidence either to enable it to pronounce
judgment or for any other substantial cause. The conditions governing each clause are separate and cannot
be interchanged. [Paras 19 to 24]

Code of Civil Procedure, 1908-Order XLI Rule 27(1)(b)-Requirement of appellate court-Scope.
2144 INDIAN LAW REPORTS ALLAHABAD SERIES
HELD: The expression "requires" occurring in clause (b) denotes the requirement of the appellate court and
not the desire or convenience of the litigating party. Additional evidence cannot be permitted merely because
a party considers it necessary to strengthen its case. The jurisdiction under clause (b) arises only where the
appellate court, upon examining the evidence already on record, forms an independent opinion that such
evidence is necessary for pronouncing a satisfactory judgment or for any other substantial cause. [Paras 23 to
35]

Code of Civil Procedure, 1908-Order XLI Rule 27-Additional evidence-Cannot be permitted to
fill lacunae.

HELD: The provisions of Order XLI Rule 27 are not intended to afford an unsuccessful litigant an opportunity
to patch up the weak parts of its case or to fill omissions left during trial. The appellate court must guard
against permitting additional evidence merely because a party failed to adduce available evidence before the
trial court. Such jurisdiction is intended to subserve the ends of justice and not to cure deficiencies in the
evidence of an unsuccessful party. [Paras 26 to 31 and 59 to 60]

Code of Civil Procedure, 1908-Order XLI Rule 27(1)(b)-Stage for consideration of application.

HELD: Although an application under Order XLI Rule 27 may be filed before the appeal is finally heard, the
question whether additional evidence is required under clause (b) ordinarily arises when the appellate court
examines the evidence already on record during hearing of the appeal. At that stage alone can the court
effectively determine whether the existing material is sufficient for pronouncing judgment or whether
additional evidence is genuinely required. [Paras 32 to 35 and 49]

Code of Civil Procedure, 1908-Order XLI Rule 27-Recording of reasons-Rejection of
application.

HELD: Rule 27(2) expressly requires recording of reasons when additional evidence is admitted. There is no
corresponding statutory mandate requiring elaborate reasons while rejecting an application under Rule 27.
Nevertheless, the order rejecting such application must disclose application of mind to the facts of the case,
the evidence already on record and the relevance of the proposed additional evidence. [Paras 42 to 44]

Specific Relief-Suit for specific performance-Appeal-Application for additional evidenceRelevance of proposed documents.

HELD: The documents sought to be produced by the defendant principally related to allotment of plots by the
Ghaziabad Development Authority to the Society, correspondence regarding demarcation, possession and
internal transactions between the Society and the Development Authority, proceedings in an independent suit
concerning penal interest, an affidavit already forming part of the record and a cheque issued in purported
compliance with the trial court decree. Since the execution of the agreement to sell and allotment of the plot
were not in dispute and the proposed documents had no bearing on the real controversy in appeal, the
appellate court rightly held that they were unnecessary for deciding the appeal. [Paras 45 to 47]

Code of Civil Procedure, 1908-Order XLI Rule 27(1)(aa)-Due diligence-Plea of oversight by
counsel.

HELD: A vague plea that relevant documents could not be produced before the trial court due to oversight of
the advocate or that efforts were made to obtain copies thereof, unsupported by proper pleadings and
material establishing due diligence, does not satisfy the requirements of clause (aa) of Rule 27(1). Such
assertions are insufficient to invoke the exceptional jurisdiction for production of additional evidence. [Paras
45 and 55]

Constitution of India-Article 227-Order refusing additional evidence-Scope of interference.
4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
2145
HELD: The power to admit or refuse additional evidence under Order XLI Rule 27 is discretionary and judicial.
The High Court, while exercising supervisory jurisdiction under Article 227, would not interfere merely because
another view is possible. Interference is warranted only where the discretion has been exercised arbitrarily or
contrary to settled principles. Where the appellate court has considered the proposed documents, assigned
cogent reasons for their irrelevance and exercised its discretion in accordance with law, no interference is
called for. [Paras 63 to 67]

Code of Civil Procedure, 1908-Order XLI Rule 27-Expression "additional evidence"-Meaning.

HELD: The expression "additional evidence" does not imply that only a party which has adduced some
evidence before the trial court can invoke Rule 27. Even where no evidence was led before the trial court, the
application is maintainable, subject to fulfilment of the statutory conditions prescribed by Rule 27. [Paras 61
and 62]

Article 227 Petition-Order rejecting application under Order XLI Rule 27 CPC-No arbitrariness
found-Petition dismissed.

HELD: Since the lower appellate court had considered each category of documents sought to be introduced,
found them irrelevant to the controversy involved in the appeal and exercised its discretion on settled
principles governing Order XLI Rule 27 CPC, the impugned order suffered from no illegality warranting
interference under Article 227 of the Constitution. The petition was accordingly dismissed without costs.
[Paras 67 and 68]

Petition dismissed. (E-14)

Case Law Cited
Parsotim Thakur and Others v. Lal Mohar Thakur and Others, 1931 SCC OnLine PC 35 - relied
on; Kessowji Issur v. G.I.P. Railway, 1907 SCC OnLine PC 9 - referred to; Venkata
Seshavatharam and Others v. Chapalamadugu Venkata Rangayya and Others, (1946) 14 ITR 722
(PC) - referred to; Arjan Singh alias Puran v. Kartar Singh and Others, AIR 1951 SC 193 - relied
on; Sangram Singh v. Election Tribunal, Kotah and Another, AIR 1955 SC 425 - referred to; K.
Venkataramiah v. A. Seetharama Reddy and Others, AIR 1963 SC 1526 - relied on; Deputy
Registrar, Co-operative Societies, U.P., Lucknow v. Chaudhary Sarfaraz-un-Zaman and Another,
1971 SCC OnLine All 361 - relied on; State Bank of India v. M/s Ashok Stores and Others, 1981
SCC OnLine Ori 69 - not followed; Chinnammal and Others v. P. Arumugham and Another,
(1990) 1 SCC 513 - referred to; Dondapati Narayana Reddy v. Duggireddy Venkatanarayana
Reddy and Others, (2001) 8 SCC 115 - referred to; K.R. Mohan Reddy v. Net Work Inc., (2007)
14 SCC 257 - relied on; State of Gujarat v. Mahendrakumar Parshottambhai Desai, (2006) 9 SCC
772 - relied on; Commissioner, Mysore Urban Development Authority v. S.S. Sarvesh, (2019) 5
SCC 419 - relied on; Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 - relied on;
Gobind Singh and Others v. Union of India and Others, AIR 2026 SC 1303 - relied on; Mahavir
Singh v. Naresh Chandra (as cited in the judgment) - referred to; Gurdev Singh v. Mehnga Ram
(as cited in the judgment) - referred to.

List of Acts / Statutes/Books
Code of Civil Procedure, 1908

List of Keywords
Additional evidence; Appellate Court; Due diligence; Substantial cause; Requirement of Court; Specific
performance; Appellate jurisdiction; Discretion; Additional documents; Appeal.

Case Arising From
2146 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition under Article 227 of the Constitution challenging the judgment and order dated 04.01.2025 passed
by the Additional District Judge, Court No. 12, Ghaziabad in Civil Appeal No. 117 of 2010, Smt.
Namrata Saraswat v. Bhupendra Singh, whereby the petitioner's application (Paper No. 153-Ga) under
Order XLI Rule 27 CPC for adducing additional evidence was rejected. The appeal arose out of the
judgment and decree dated 18.09.2010 passed by the Civil Judge (Senior Division), Ghaziabad, in
Original Suit No. 1501 of 1998 for specific performance.

Appearance for Parties
For the Revisionist: Sri Ritvik Upadhya.
For the Respondents: Sri Bablu Singh; Ms. Vishakha Pande.

(Delivered by Hon'ble Manish Kumar Nigam, J.)

1. This petition has been filed challenging the order dated 04.01.2025 passed by the Additional
District Judge, Court No. 12, Ghaziabad in Civil Appeal No. 117 of 2010, Smt. Namrata Saraswat
vs. Bhupendra Singh, rejecting the application filed by the defendant-respondent (petitioner), under
Rule 27 of Order XLI C.P.C.

2. Brief facts of the case are that plaintiff-respondent (hereinafter referred to as 'respondent'),
Smt. Namrata Saraswat, instituted Original Suit No. 1501 of 1998, Smt. Namrata Saraswat vs. Sri
Bhupendra Singh, Advocate, in the court of Civil Judge, Senior Division, Ghaziabad for a decree of
specific performance of an agreement to sell dated 14.10.1992 executed by the defendant-petitioner
(hereinafter referred to as 'petitioner'), in favour of the respondent of the property in question. It
was pleaded inter alia in the plaint that on 13.08.1990 petitioner was allotted residential plot
(property in dispute) by the Ghaziabad Development Authority, Ghaziabad, and the petitioner on
15.10.1992 executed an agreement to sell in favour of the respondent for a sum of Rs.43,620/-. Rs.
43,000/- was paid in advance as part payment of the consideration and respondent was put in
possession over the property in dispute. In the said agreement for the sell, it was provided that the
sale deed was to be executed by the petitioner within one month after first getting the lease deed
executed in his favour from the Ghaziabad Development Authority through Adhivakta Sahakari
Awas Samiti Limited (hereinafter referred to as 'Samiti') and thereafter obtaining the permission to
sell the plot in question from the Samiti. After being noticed, the petitioner appeared and contested
the suit by filing written statement, wherein the petitioner pleaded that after the execution of the
lease deed in his favor by the Ghaziabad Development Authority, defendant was declared to be
sub-lessee and the agreement to sell the property in dispute was under misconception. The
permission sought by the petitioner to transfer the plot in favour of the respondent was refused by
the Samiti. It was also pleaded that being sub-lessee, the petitioner was not competent to transfer
the plot and as such the agreement to sell was not enforceable. Both the parties led their evidence to
prove their case. The two important issues apart from other framed by the trial court, on the basis of
pleadings of the parties, were whether the respondent as per the facts of the case, was entitled for
decree of specific performance and whether the respondent was ready and willing to perform his
part of the agreement. The petitioner though filed his evidence paper No. 22-Ga, but thereafter
remained absent and his opportunity to lead evidence was closed. The trial court decided the issue
of willingness and readiness against the respondent and the suit filed by the respondent was partly
decreed by the judgment and decree dated 18.09.2010 passed by Civil Judge, Senior Division
Ghaziabad for refund of earnest money along with the interest, but the decree of specific
4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
2147
performance was refused. Being aggrieved, the respondent filed first appeal under Section 96 C.P.C
before the Additional District Judge, Ghaziabad being Civil Appeal No. 117 of 2010, Smt. Namrata
Saraswat Vs. Shri Bhupendra Singh. The appeal filed by the defendant was allowed by the
appellate court on 09.3.2011. The petitioner filed an application under Order XLI Rule 21 C.P.C
for restoration of appeal, which was rejected by the court below by order dated 19.10.2011. The
order dated 19.10.2011 was challenged before this court in FAFO No. 42 of 2012, which was
allowed by this Court by judgment and order dated 01.11.2022, and the matter was remitted to the
first appellate court to decide the appeal within a period of six months. After the remand, the matter
was taken by the first appellate court, and an application was filed by the petitioner for framing
additional issue as to non-joinder of necessary party. The said application was rejected by the lower
appellate court by order dated 10.04.2023. On 24.07.2023, the petitioner moved an application,
paper No. 153- Ga, under Order XLI Rule 27 for taking additional evidence in the said appeal, to
which objections were filed by the respondent. Lower appellate court by order dated 19.07.2024
rejected the application No. 153 Ga. Order dated 19.07.2024 was challenged by the petitioner
before this Court by filing a petition under Article 227 of the Constitution of India being Matters
Under Article 227 No. 11479 of 2024. The petition under Article 227 of the Constitution of India
was allowed by this Court vide judgment and order dated 18.09.2024 directing the appellate court
to decide the application afresh considering the judgment of Hon'ble Supreme Court in case of
Sanjay Kumar Singh Vs. State of Jharkhand; (2022) 7 SCC 247. The lower appellate court, i.e.
Additional District Judge, Ghaziabad, after remand by judgment and order dated 04.01.2025,
rejected the application filed by the petitioner under Order XLI Rule 27 of C.P.C. Hence the
present writ petition.

3. Contention of Sri Ritvik Upadhya, learned counsel for the petitioner is that the documents
sought to be produced by the petitioner had a direct and significant bearing with the controversy to
be decided in the appeal. It has been submitted by learned counsel for the petitioner that the lower
appellate court ought to have admitted the evidence which was sought to be produced by the
petitioner as an additional evidence, as the same was directly connected with the controversy to be
decided in appeal and was necessary to be considered for rendering correct judgment. Learned
counsel for the petitioner relied upon judgments of the Supreme Court in cases of :-Venkata
Seshavatharam & Ors Vs. Chapalamadugu Venkata Rangayya & Ors.;(1946) 14 ITR 722,
Arjan Singh Alias Puran Vs. Kartar Singh & Ors; 1951 SCC 178, K. Venkataramiah Vs.
Seetharama Reddy & Ors.;1963 SCC OnLine SC 216, Deputy Registrar, Co-operative
Societies, U.P., Lucknow Vs. Chaudhari Sarfaraz-un-Zaman & Anr.; 1971 SCC Online All
367, State Bank of India Vs. M/s Ashok Stores & Ors.;1981 SCC OnLine Ori 69, Akash
Ganga Builders & Engineers (P) Ltd. Vs. G.P. Seth HUF & Anr., 1999 (50) DRJ (DB), K.R.
Mohan Reddy Vs. Net Work INC;(2007) 14 SCC 257, Sangram Singh Vs. Election Tribunal,
Kotah & Anr.; (1955) 1 SCC 323, Chinnamal & Ors. Vs. P. Arumugham & Anr.;(1990) 1
SCC 513, Dondapati Narayana Reddy Vs. Dugireddy Venkatanarayana Reddy & Ors.;(2001)
8 SCC 115, Commissioner Mysore Urban Development Authority Vs. S.S. Sarvesh; (2019) 5
SCC 144, Sanjay Kumar Singh Vs. State of Jharkhand; (2022) 7 SCC 247.

4. Per contra, Ms. Vishakha Pandey, learned counsel for the respondent submitted that the
application filed by the petitioner under Order XLI Rule 27 of C.P.C. was not maintainable as none
of the conditions contemplated under Sub-rule (1) of Rule 27 of Order XLI existed. Learned
2148 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel further contended that it is for the court to decide whether any evidence is required to be
produced as additional evidence for pronouncement of judgment or for any other sufficient cause,
and it is not open for the party applying for additional evidence to direct the court to consider the
evidence for the said purpose. It has also been submitted by learned counsel for the respondent that
the court below has rightly rejected the application filed by the petitioner after holding that the
evidence was not necessary for the controversy in dispute. Lastly, it was submitted by Ms.
Vishakha Pandey, learned counsel appearing for the respondent, that since opportunity to lead
evidence of the defendant was closed by the trial court, therefore, there was no evidence on behalf
of the petitioner before the trial court, and as such, in absence of any evidence before the trial court,
additional evidence could not be filed by the petitioner under Order XLI Rule 27 C.P.C as the word
"additional evidence" presupposes the existence of some evidence. It has been further submitted
that the expression "additional evidence" implies leading of some evidence by the party and only in
such cases the petitioner may apply to produce additional evidence and not otherwise.

5. Learned counsel for the respondents relied upon the judgment in cases of:- Kessowji Issur
Vs. Great Indian Peninsula Railway Company; [1907 SCC Online PC 9], Parsotim Thakur &
Others Vs. Lal Mohar Thakur & Others ; [1931 SCC Online PC 35], Arjan Singh @ Puran
Vs. Kartar Singh & Others [1951 SCC 178], State of U.P. Vs. Manbodhan Lal Srivastava ;
[1957 SCC Online SC 4], The Municipal Corporation Greater Bombay Vs. Lala Pancham
&Others; [AIR 1965 SC 1008].

6. Before considering the rival submissions of the party, it would be appropriate to note the
relevant statutory provisions for adducing the additional evidence.

7. Normally, the evidence whether oral or documentary is filed before the trial court. Rule 14
of Order VII of CPC provides, where a plaintiff sues upon a document or relies upon a document in
his possession or power in support of his claim, he shall enter such documents in a list, and shall
produce it in court when the plaint is presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the plaint. Sub-rule (2) of Rule 14 of Order VII
provides, where any such document is not in the possession or power of the plaintiff, he shall,
wherever possible, state in whose possession or power it is. Sub-rule (3) of Rule 14 provides, a
document which ought to be produced in court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint, but is not produced or entered accordingly,
shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the
suit.

8. Similarly, Order VIII, Rule 1-A, (inserted by Act 46 of 1999, w.e.f. 01.07.2002), where the
defendant bases his defence upon a document or relies upon any document in his possession or
power in support of his defence or claim for set-off or counterclaim, he shall enter such document
in a list and shall produce it in court when the written statement is presented by him and, at the
same time, deliver the document and a copy thereof to be filed with the written statement. Sub-rule
(2) of Rule 1-A of Order VIII provides, where any such document is not in possession or power of
the defendant, he shall, wherever possible, state in whose presence or power it is. Sub-rule (3) of
Rule 1-A provides a document which ought to be produced in court by the defendant under this
4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
2149
rule, but, is not so produced, shall not, without the leave of the court, be received in evidence on his
behalf at the hearing of the suit.

9. Order XIII, Rule 1 of C.P.C. provides parties or their pleader shall produce, on or before the
settlement of issues, all the documentary evidence in original where the copies thereof have been
filed along with plaint or written statement. Sub-rule (2) of Order XIII provides, the court shall
receive the documents so produced, provided they are accompanied by an accurate list prepared in
such form as the High Court directs.

10. Order XVI Rule 1 provides, on or before such date as the court may appoint, and not later
than fifteen days after the date on which issues are settled, the parties shall present in court a list of
witnesses whom they propose to call either to give evidence or to produce documents and obtain
summonses to such persons for their attendance in court. Sub-rule (3) of Rule 1 of Order XVI
provides that the Court may, for reasons to be recorded, permit a party to call, whether by
summoning through court or otherwise, other than those whose names appear in the list referred to
in sub-rule (1), if such party shows sufficient cause for omission to mention the name of such
witness in the said list. Rule 1-A of Order XVI provides, subject to the provisions of sub-rule (3) of
Rule 1, any party to a suit may, without applying for summons under Rule 1, bring any witness to
give evidence or to produce documents.

11. Thus, from the reading of the aforesaid provisions of the C.P.C, it is clear that normal rule
is that evidence, whether oral or documentary, has to be produced before the trial Court in
accordance with the provisions of the C.P.C referred above.

12. Section 107 C.P.C. provides for powers of appellate court. Sub-section 1(d) of Section 107
authorizes the appellate court to take additional evidence or to require such evidence to be taken.
Section 107 of C.P.C. is quoted as under:-

"107. Powers of Appellate Court.-(1) Subject to such conditions and limitations as may
be prescribed, an Appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as maybe the same duties as are conferred and imposed by this Code on Courts
of original jurisdiction in respect of suits instituted therein."

13. The power to take additional evidence by the appellate court is subjected to such
conditions and limitations as may be prescribed. Section 107(1)(d) enables the appellate court to
admit additional evidence, Order XLI Rule 27 furnishes grounds on which additional evidence may
be admitted. Order XLI Rule 27 of C.P.C. is quoted as under:-

"27. Production of additional evidence in Appellate Court.-
2150 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether
oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence
which ought to have been admitted, or

(aa) 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

(b) 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) Whenever additional evidence is allowed to be produced by an Appellate Court, the
Court shall record the reason for its admission."

14. The provisions of Rule 27 of Order XLI shall be read with Section 107(1)(d). The
underlying object of these provisions is to permit parties to adduce complete evidence in support of
their case and to allow such evidence which would completely adjudicate the dispute between the
parties and would do full justice to the cause.

15. Sub-rule (1) of Rule 27 begins with a negative condition. The words ("the parties to an
appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the
appellate court") clearly indicate the legislative intent. It also lays down a general rule that an
appellate court should decide an appeal on evidence led by the parties before the trial court and
should not admit additional evidence in appeal. Sub-rule (1) of Rule 27 should be read with clause
(a) of sub-section (1) of Section 107. The said clause also require the appellate court "to determine
a case finally". Rule 24 of Order XLI, too, enjoins the appellate court to determine the case finally
where evidence on record is sufficient for such determination. Thus, normally an appellate court
should not allow additional evidence to be produced and should decide an appeal on the basis of
material on record. Sub-rule (1) of Rule 27 of Order XLI, having laid down a general rule as to
leading of additional evidence in negative form, proceeds to carve out exceptions and enumerate
circumstances in which the appellate court is allowed to admit additional evidence under clause (a),
(aa) or (b) of sub-rule (1) of Rule 27.

16. Constitution Bench of the Supreme Court in case of K. Venkataramaih v. Seetharama
Reddy (supra) while interpreting Section 107 read with sub-rule (1) of Rule 27 of Order XLI,
stated, "Section 107 of the Code of Civil Procedure empowers the appellate court 'to take
additional evidence or to require such evidence to be taken, "subject to such conditions and
limitations as may be prescribed'. Rule 27 of Order XLI of the Code of Civil Procedure prescribes
the conditions and limitations in the matter. The rule first lays down that the parties to an appeal
shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate
court. It then proceeds to lay down two classes of cases where the appellate court may allow
additional evidence to be produced."
4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
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Note- Clause (aa) of sub-rule (1) of Rule 27 of Order XLI was added by Act 104 of 1976 w.e.f
01.02.1977.

17. Order XLI, Rule 27, as enacted originally, had only two sub-clauses, i.e. 1 (a) and (b).
Sub-clause (aa) was added by Act 104 of 1976 w.e.f 01.02.1977.

18. Before proceeding further, it would be relevant to look into the provisions contained in
Code of Civil Procedure, 1882. Section 568 and Section 623 of C.P.C., 1882 are quoted as under:

"568. The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if

(a) the Court against whose decree the appeal is made refuses to admit evidence which
ought to have been admitted, or

(b) 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 to be produced, or document to be received,
or witness to be examined.

Whenever additional evidence is admitted by an Appellate Court, the Court shall record
on its proceedings the reason for such admission.

623. Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is hereby allowed, but from which no
appeal has been preferred;

(b) by a decree or order from which no appeal is hereby allowed; or

(c) by a judgment on a reference from a Court of Small Causes,

and who from the discovery of new and important matter or evidence which, after the
exercise of due diligence, was not within his knowledge or could not be produced by him at the time
when the decree was passed or order made, or on account of some mistake or error apparent on
the face of the record, or for any other sufficient reason, desires to obtain a review of the decree
passed or order made against him..."

19. Rule 27 of Order XLI enumerates circumstances wherein an appellate court may admit
additional evidence, whether oral or documentary, in appeal. They are as under:

(i) where the lower court has improperly refused to admit evidence which ought to have been
admitted; or

(іi) 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 made the order, or

(iii) where the appellate court itself requires such evidence either (a) to enable it to pronounce
judgment; or (b) for any other substantial cause.

20. Clauses (a), (aa) and (b) of sub-rule (1) of Rule 27 are different; they deal with different
situations and operate in different fields.
2152 INDIAN LAW REPORTS ALLAHABAD SERIES

21. So far as clause (a) is concerned, it covers cases where the lower court has improperly
refused to admit evidence which ought to have been admitted.

22. Clause (aa), as inserted by the Amendment Act, 1976, applies to production of additional
evidence which was not within the knowledge of the party, or could not, even after exercise of due
diligence, be produced by him at the time when the lower court passed the decree or made the
order.

23. Clause (b) deals with totally different situation. Here, it is the court, i.e. the appellate court
which requires additional evidence to be allowed on one of the two grounds, viz.

(i) for pronouncement of judgment; or

(ii) for any other substantial cause.

In either case, it is the requirement of the appellate court. Nothing more but nothing less.

24. Conditions precedent for application of clause (a) and clause (aa) of sub-rule (1) of Rule
27 of Order XLI are different from that of clause (b). In the event, the former is to be applied, it
would be for the applicant to show that the ingredients or conditions precedent mentioned therein
are satisfied. On the other hand, if clause (b) to sub-rule (1) of Rule 27 of Order XLI C.P.C. is to be
taken recourse to, the appellate court is bound to consider the entire evidences on record and come
to an independent finding for arriving at a just decision; adduction of additional evidence as has
been prayed by the appellant or respondent was necessary in an appeal.

25. In the present case, we are mainly concerned with clause (b) to sub-rule (1) of Rule 27 of
Order XLI C.P.C. Clause (b) covers cases wherein the appellate court may itself require additional
evidence (production of document or examination of witness) either (i) for pronouncement of
judgment; or (ii) for any other substantial cause. "Requires" means "Needs" or "finds needful". As
seen above, even under the old Code of 1882, Section 562 enabled the trial court to produce
additional evidence, if the appellate court required.

26. The privy council in Parsotim Thakur and others Vs. Lal Mohar Thakur and others;
1931 SCC Online PC 35 has held at page No. 87 as under:-

"In their Lordships' opinion this additional evidence ought not to have been admitted. If
the respondents desired to give evidence as to the thumb-impression they had ample opportunity to
do so in the trial Court. The provisions of Sect. 107, Civil Procedure Code, as elucidated by O. 41,
R. 27, are clearly not intended to allow a litigant who has been unsuccessful in the the lower Court
to patch up the weak parts of his case and fill up omissions in the Court of Appeal.

Turning to the provisions of R. 27, Cl. (1) (a) has no application in the present case.
Under Cl. (1) (b), it is only where the appellate Court "requires" it, (i.e., finds it needful) that
additional evidence can be admitted. It may be required to enable the Court to pronounce judgment
or for any other substantial cause, but in either case it must be the Court that requires it. This is the
plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this
4 All. Bhupendra Singh Vs. Smt. Namrata Saraswat
2153
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." This is laid down in the most positive terms by Lord Robertson In Kessowji Issur v.
G.I.P. Ry [1907 SCC Online PC 9]. He was dealing with the words of Sect. 568 of the Code of
1882, but they are substantially the same as those of 0. 41, R. 27, of the present Code. It may well
be that the defect may be pointed out by a party, or that a party may move the Court to supply the
defect, but the requirement must be the requirement of the Court upon its appreciation of the
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. Their Lordships regret to find that
so far as the record discloses, none of these conditions was complied with in the present case."

27. The Supreme Court in Arjan Singh @ Puran Vs. Kartar Singh and others; 1951 SCC
178 referring to above mentioned privy council decision, stated: "The true test, therefore, is
whether the appellate court is able to pronounce judgment on the materials before it without taking
into consideration the additional evidence sought to be adduced."

28. In case of K. Venkataramiah Vs. Seetharama Reddy (supra), the Supreme Court held
the ability to pronounce a judgment does not mean or confine to the ability to pronounce any
judgment, but the ability to pronounce a judgment satisfactory to the mind of the court delivering or
pronouncing it. An appellate court may be able to pronounce judgment on the basis of material on
record, but may still consider additional evidence to pronounce correct, satisfactory, or effective
judgment. Additional evidence may be allowed in such cases.

29. However, in case of The Municipal Corporation of Greater Bombay Vs. Lala Pancham and
others; AIR 1965 SC 1008, it has been held by the Supreme Court that the appellate court cannot
allow additional evidence only for the purpose of pronouncing judgment in a particular way.

30. The appellate court may admit additional evidence, "for any other substantial cause." The
words "for any other substantial cause" should be construed liberally and they do not need to
confine on the rule of ejusdem generis with the cause stated in earlier part of the provision,( i.e.,"to
pronounce"). The words ("for any other substantial cause") confer very wide discretion on the
appellate court to admit additional evidence where end of the justice require admission of such
evidence. Normally, the test applied for the purpose is the question whether the material, i.e.
additional evidence, would alter the decision that was rendered without the material. The word
"substantial" indicates that it must positively point to the fact that the record on the basis of which
the suit has been decided was incomplete in the sense that had this material "additional evidence"
been before the court, the result would have been inevitably been different.

31. In case of K. Venkataramiah (supra), Supreme Court clearly and univocally held that
requirement must be of the appellate court alone but the power to allow additional evidence in
appeal has to be exercised cautiously, sparingly, and only in exceptional circumstances. The
requirement must be the requirement of the court and not that of a party who had lost the litigation.
Additional evidence cannot be allowed to enable the applicant to fill in lacuna or to strengthen his
case in appeal.
2154 INDIAN LAW REPORTS ALLAHABAD SERIES

32. Another question which has to be considered is when the application for additional
evidence may be decided. Rule 27(1) of Order XLI contemplates three different situations which
have been enumerated in separate clauses (a), (aa), and (b). So far as clause (a) is concerned, it
covers cases lower court has refused to admit evidence which ought to have been admitted. The
applicant may file an application before the appellate court for production of evidence said to have
been wrongly and erroneously refused by the lower court. Such an inquiry is independent of
hearing of the main matter i.e. appeal and hence the question can be decided by the appellate court
on the basis of the complaint made or grievance raised by the applicant in the light of relevant
provision of law and it can pass appropriate order in accordance with law.

33. Clause (aa) gets attracted in those cases where the party seeking to produce additional
evidence, establishes that notwithstanding the exercise of due diligence, (I) such evidence was not
within his knowledge or (II) could not be produced by him in lower court. In support of this clause,
the limited inquiry the appellate court is required to make is whether the applicant is right in his
submission that he had exercised due diligence and in support of such due diligence, either he could
not come to know of such evidence, or he could not produce it before the lower court. Onus of
proof is on the applicant to satisfy the court as to the applicability of clause (a) or (aa). If applicant
is able to convince the court of his claim, the appellate court would allow the application.

34. Clause (b) applies in those cases where the court, i.e., the appellate court requires
additional evidence to enable it either (I) to pronounce judgment, or (II) for any other substantial
cause. Under clause (b), the requirement is the requirement of the court and such requirement
should be either of the two purposes specified in the clause, i.e, either for pronouncement of
judgment or for any other substantial cause.