# Smt. Geeta Devi & Anr v. Additional District Judge/Special Judge

- **Citation:** (2019) 4 ILRA 1083
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-17
- **Case number:** Writ-A No. 16055 of 2019
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-geeta-devi-anr-v-additional-district-judge-special-judge-44842
- **Pages:** 11

## Headnote

A. Civil Law - Code of Civil Procedure
,1908 - Order XLI Rule 27 - Production of
additional evidence in Appellate court -
Application 30 C - filed by the tenant for
taking as additional evidence - rejected -
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
An application under Order XLI Rule 27
C.P.C. must contain necessary averment
as
to
why
additional
evidence
is
necessary to decide the real controversy
involved in the Appeal or revision -
additional evidence cannot be permitted
to be adduced so as to fill in the lacunae
or to patch up the weak points in the
case. (Para 2 & 24)

B. Civil Law - Code of Civil Procedure,
1908 - Order XLI Rule 27 - exception -
Appellate
court
to
take
additional
evidence in exceptional circumstances -
The inadvertence of the party or his
inability to understand the legal issues
involved or the wrong advice of a
pleader or the negligence of a pleader or
that the party did not realise the
importance of a document, does not
constitute a "substantial cause" within
the meaning of this rule. (Para 24)

The general principle is that the Appellate
court should not travel outside the record of
the lower court and cannot take any evidence
in appeal. However , as an exception ,order
XLI rule 27 CPC enables the Appellate Court
to take additional evidence in exceptional
circumstances if the Court from whose decree
the appeal is preferred has refused to admit
evidence which ought to have been admitted
or 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 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. (Para 24)

Held: - It is not the business of the Appellate
Court to supplement the evidence adduced by
one party or the other in the lower Court. In
the absence of satisfactory reasons for non-
production of the evidence in the trial court,
additional evidence should not be permitted in
appeal as a party guilty of remissness in the
lower court is not entitled to the indulgence of
being allowed to give further evidence. A party
who had ample opportunity to produce certain
evidence in the lower court but failed to do so
or elected not to do so, cannot have it
admitted in appeal. (Para 24)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Jaipur
Development
Authority
Vs.
Kailashwati Devi (Smt.) (1997) 7 SCC 297,

2.Union of India Vs. K.V. Lakshman and others
(2016) 13 SCC 124,

3.Civil Appeal No.4628 of 2019 Jiten K. Ajmera
& Anr. Vs. M/s. Tejas Co-operative Housing
Society.

4.Malyalam Plantations Ltd. vs. State of Kerla,
(2010) 13 SCC 487, (Para-17)

5.Union Of India vs Ibrahim Uddin, (2010) 8
SCC 148, (Paras-36 to 41)

6.K. Venkataramiah v. A. Seeth

## Text

4 All. Smt. Geeta Devi Vs. Additional District Judge/Spl. Judge (Prevention of Corruption Act), Gorakhpur & Ors. 1083

*** ***
***

(u) an order under Rule 23 [or
Rule 23-A] of Order XLI remanding a
case, where an appeal would lie from the
decree of the Appellate Court;"

12. A perusal of the said provision
clearly indicates that an appeal does not
lie against the remand order.

13. The same issue fell for
consideration before the Supreme Court
in the case of Jegannathan (supra),
wherein the Supreme Court considering
the provisions of Order XLI Rule 23,
Order XLI Rule 23-A and Order XLI
Rule 25 CPC has held as under:

"11. The High Court relied upon a
decision of this Court in Narayanan v. Kumaran4
in holding that civil miscellaneous appeal from
the order of remand was not maintainable. The
High Court was clearly in error. What has been
held by this Court in Narayanan is that an appeal
under Order 43 Rule 1 Clause (u) should be
heard only on the ground enumerated in Section
100 of the Code. In other words, the constraints of
Section 100 continue to be attached to an appeal
under Order 43 Rule 1(u). The appeal under
Order 43 Rule 1(u) can only be heard on the
grounds a second appeal is heard under Section
100.

12.
There
is
a
difference
between maintainability of an appeal and
the scope of hearing of an appeal. The
High Court failed to keep in view this
distinction and wrongly applied the case
of
Narayanan
in
holding
that
miscellaneous appeal preferred by the
appellant was not maintainable."

14. Learned counsel for the
appellant has relied on the judgment of
Narayanan (supra).

15. Pertinently, the judgment of
Narayanan
(supra)
has
been
distinguished by the Supreme Court in
Jegannathan (supra) in paragraph-11 &
12 of the judgment, which has been
extracted above.

16. In view of the said principle, it is
evident that against a remand order the
present second appeal is not maintainable.
Accordingly, the recall application is
allowed. The order dated 07th March,
2017 is recalled.

17. Resultantly, the second appeal is
dismissed as not maintainable.

18. No order as to costs.
----------
(2019)12 ILR A1083

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.10.2019

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

Writ-A No. 16055 of 2019

Smt. Geeta Devi & Anr. ...Petitioners
Versus
Additional District Judge/Special Judge
(Prevention
of
Corruption
Act),
Gorakhpur & Ors. ...Respondents

Counsel for the Petitioners:
Sri H.N. Mishra, Sri Abhishek Misra

Counsel for the Respondents:
---

A. Civil Law - Code of Civil Procedure
,1908 - Order XLI Rule 27 - Production of
additional evidence in Appellate court -
Application 30 C - filed by the tenant for
taking as additional evidence - rejected -
1084 INDIAN LAW REPORTS ALLAHABAD SERIES
An application under Order XLI Rule 27
C.P.C. must contain necessary averment
as
to
why
additional
evidence
is
necessary to decide the real controversy
involved in the Appeal or revision -
additional evidence cannot be permitted
to be adduced so as to fill in the lacunae
or to patch up the weak points in the
case. (Para 2 & 24)

B. Civil Law - Code of Civil Procedure,
1908 - Order XLI Rule 27 - exception -
Appellate
court
to
take
additional
evidence in exceptional circumstances -
The inadvertence of the party or his
inability to understand the legal issues
involved or the wrong advice of a
pleader or the negligence of a pleader or
that the party did not realise the
importance of a document, does not
constitute a "substantial cause" within
the meaning of this rule. (Para 24)

The general principle is that the Appellate
court should not travel outside the record of
the lower court and cannot take any evidence
in appeal. However , as an exception ,order
XLI rule 27 CPC enables the Appellate Court
to take additional evidence in exceptional
circumstances if the Court from whose decree
the appeal is preferred has refused to admit
evidence which ought to have been admitted
or 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 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. (Para 24)

Held: - It is not the business of the Appellate
Court to supplement the evidence adduced by
one party or the other in the lower Court. In
the absence of satisfactory reasons for non-
production of the evidence in the trial court,
additional evidence should not be permitted in
appeal as a party guilty of remissness in the
lower court is not entitled to the indulgence of
being allowed to give further evidence. A party
who had ample opportunity to produce certain
evidence in the lower court but failed to do so
or elected not to do so, cannot have it
admitted in appeal. (Para 24)

Writ Petition dismissed. (E-7)

List of cases cited: -

1.Jaipur
Development
Authority
Vs.
Kailashwati Devi (Smt.) (1997) 7 SCC 297,

2.Union of India Vs. K.V. Lakshman and others
(2016) 13 SCC 124,

3.Civil Appeal No.4628 of 2019 Jiten K. Ajmera
& Anr. Vs. M/s. Tejas Co-operative Housing
Society.

4.Malyalam Plantations Ltd. vs. State of Kerla,
(2010) 13 SCC 487, (Para-17)

5.Union Of India vs Ibrahim Uddin, (2010) 8
SCC 148, (Paras-36 to 41)

6.K. Venkataramiah v. A. Seetharama Reddy &
Ors., AIR 1963 SC 1526;

7.The
Municipal
Corporation
of
Greater
Bombay v. Lala Pancham & Ors., AIR 1965 SC
1008;

8.Soonda Ram & Anr. v. Rameshwaralal &
Anr., (1975) 3 SCC 698: AIR 1975 SC 479;

9.Syed Abdul Khader v. Rami Reddy & Ors.,
(1979) 2 SCC 601 : AIR 1979 SC 553,

10.Haji
Mohammed
Ishaq
Wd.
S.
K.
Mohammed & Ors. v. Mohamed Iqbal and
Mohamed Ali and Co., AIR 1978 SC 798,

11.State of U.P. v. Manbodhan Lal Srivastava,
AIR 1957 SC 912;

12.S. Rajagopal v. C.M. Armugam & Ors., AIR
1969 SC 101

13.Shri Kishore and another vs. Roop Kishore,
2006 (62) ALR 414,

14.Natha Singh v. The Financial Commissioner
AIR 1976 SC 1053
4 All. Smt. Geeta Devi Vs. Additional District Judge/Spl. Judge (Prevention of Corruption Act), Gorakhpur & Ors. 1085
15.Shiv Karan and others vs. Special Judge,
E.C. Act and another, 2011 (1) JCLR 864 (All)
(LB),

16.Satish Kumar Gupta etc. vs. State of
Haryana and others, 2017 (2) JCLR 36 (SC).

17.Smt. Ganga Devi and another vs. Bhagwan
Das and others, 2014 (106) ALR 295,

18.MATTERS UNDER ARTICLE 227 No. - 4904
of 2017 Prahlad And 7 Others Vs. Chandra
Bhan And 6 Others

19.Natha Singh v. The Financial Commissioner
AIR 1976 SC 1053

20.Shri Kishore and another vs. Roop Kishore,
2006 (62) ALR 414

(Delivered by Hon'ble Surya Prakash
Kesarwani,J.)

1. Heard Sri H.N. Misra, learned
Senior Advocate, assisted by Sri Abhishek
Misra, learned counsel for the defendanttenant-petitioner.

2. This writ petition has been filed
praying
to
quash
the
order
dated
30.09.2019 in Rent Revision No.36 of
2016 (Krishna Devi Vs. Rajendra Kumar),
passed
by
Additional
District
Judge/Special Judge (PC Act), Court
No.2, Gorakhpur, whereby the application
30 C under Order XLI Rule 27 C.P.C.
filed by the tenant-petitioner for taking as
additional evidence paper No.49 C and 50
C, has been rejected.

3. Briefly stated facts of the present
case are that the disputed house was
purchased by Smt. Premlata Devi, W/o
Sri Krishn Mohan by a registered sale
deed dated 25.10.1969. She raised new
construction after getting the map passed
on 25.05.1970 from the Nagar Palika
Gorakhpur. A portion of the said house
was let out for residential purpose by Smt.
Premlata Devi to the original tenant Bansi
Lal under a rent agreement dated
31.03.1971. It appears that subsequently,
the original tenant made alteration in the
tenanted portion and converted it for
commercial use and started running a
shop. After the death of the original
landlady and her husband Krishn Mohan,
the house in question was inherited by the
plaintiff-respondent Dr. Rajendera Kumar
Agarwal, who after determining the
tenancy by notice to the tenant, filed SCC
Suit No.25 of 2001 (Dr. Rajendra Kumar
Agarwal Vs. Bansi Lal). During pedency
of the suit the tenant Bansi Lal died and
he was succeeded by his six heirs and
legal representatives.

4. The SCC suit was filed mainly on
two grounds, firstly, default in payment of
rent and, secondly, that the tenant without
permission in writing of the landlord
made construction/structural alteration in
the building which diminished its value,
utility and disfigured it and started using
it for a purpose other than the purpose for
which he was admitted to the tenancy of
the building. The suit was decreed by
judgment and decree dated 19.10.2016,
passed by the Judge Small Cause
Court/Civil Judge (S.D.), Gorakhpur. The
Judge Small Cause Court rejected the plea
of the plaintiff-landlord regarding default
in payment of rent by the tenant but
accepted
the
grounds
of
structural
alteration by the tenant without written
permission and use of the tenanted
premises for commercial purpose while
the tenancy was for residential purpose.
Aggrieved with this judgment, the tenantpetitioner filed SCC Revision No.36 of
2016 (Krishna Devi Vs. Rajendra Kumar)
in which final arguments had commenced
and
the
revision
was
argued
on
1086 INDIAN LAW REPORTS ALLAHABAD SERIES
16.09.2019 at length and thereafter, it was
fixed for rest of the arguments. Instead of
concluding the arguments, the tenantpetitioners filed an application 30 C on
24.09.2019 under Order XLI Rule 27
CP.C. Which is reproduced below:-

"एनेक्चर-3

न्यायालय श्रीमान् ऄपर जजला
जज (भ्रष्टाचार जनवारण) कोर्ट नं० 2

गोरखपुर

लघुवाद जनगरानी संख्या
36/2016

दरखास्त ऄन्तगटत अदेश 41
जनयम 27 सी०पी०सी०

सपठित धारा 151
सी०पी०सी०

उपरोक्त
लघुवाद
जनगरानी में जनवेदन है कक बरवक्त तैम्यारी बहस
प्राथी के वतटमान ऄजधवक्ता द्वारा जपछली तारीख
पेशी पर पत्रावली को देखा गया तो पता चला
कक प्राथी द्वारा फदट सबूत कागज संख्या 49 ग से
जो कागजात कागज संख्या 50/ग ऄधीनस्थ
न्यायालय में दाजखल ककये गये हैं। उक्त सभी
प्रपत्र फोर्ो कापी के रूप में है। जजसके कारण
प्राथी के वतटमान ऄजधवक्ता द्वारा प्राथी से उसकी
ऄसल की मांग की गयी। चूंकी प्राथी कायदा
कानून से ऄनजभज्ञ व्यजक्त है और ऄधीनस्थ
न्यायालय में मुकदमें की पैरवी प्राथी के बाबा (
ग्रेन्ड फादर) वंशी लाल गुप्ता करते थे और सम्पूणट
कागजात उन्हीं के पास थे बाद वफात वंशीलाल
गुप्ता प्राथी ऄधीनस्थ न्यायालय के समक्ष
प्रजतस्थाजपत हुए लेककन कानूनी राय न जमलने के
कारण उपरोक्त ककराये को जमा शुदा चालान की
ऄसल प्रजत ऄधीनस्थ न्यायालय के समक्ष दाजखल
नहीं कर सके। प्राथी के वतटमान ऄजधवक्ता द्वारा
उपरोक्त चालान की ऄसल प्रजत मांगने पर प्राथी
द्वारा घर में रखे कागजातों को तलाशने पर उक्त
उपरोक्त चालान के ऄलावे कुछ ऄहम सबूत
कागजात जो स्वीकृत रूप से मुकदमा लघुवाद के
वादी के जपता शंभू प्रसाद ऄग्रवाल द्वारा जारी
ककराये को रसीद तथा सेल्स र्ैक्स जवभाग द्वारा
जनगटत नोठर्स एवं श्रम जवभाग द्वारा जनगटत
प्रमाण पत्र की ऄसल प्रजतजलजप प्राप्त हुई। जजसे
प्राथी ने ऄपने वतटमान ऄजधवक्ता को कदखाया तो
प्राथी के वतटमान ऄजधवक्ता ने बताया कक
उपरोक्त समस्त संलग्न सबूत कागजात जनगरानी
हाजा के पूणट प्रभावी न्याय जनणटयन हेतु अवश्यक
सबूत कागजात है। जजनका दाजखला न्याय जहत
में अवश्यक है। चूंकक संलग्न सबूत कागजात
कानूनी राय न जमलने एवं प्राथीगण के सम्यक
तत्परता के बावजूद जानकारी न होने के कारण
ऄधीनस्थ न्यायालय के समक्ष मुकदमा लघुवाद
में दाजखल नहीं ककये जा सके थे। ऐसी जस्थजत में
संलग्न सबूत कागजात को ऄंगीकृत ककया जाना
न्यायोजचत एवं न्याय संगत है। ऄन्यथा
जनगरानीकताट की ऄपूणीय क्षजत होगी।

ऄतः प्राथटना है कक सूची कागजात से संलग्न
सबूत कागजातों को साक्ष्य में ऄंगीकृत ककये जाने
का अदेश देने की कृपा करें।

प्राथी/राहुल"

5. The aforesaid application 30 C
has been rejected by the impugned
order dated 30.09.2019, passed by the
Additional District Judge/Special Judge
(PC
Act),
Court
No.2,
Gorakhpur.
Aggrieved with this order, the tenantpetitioner has filed the present petition
under Article 226 of the Constitution of
India.
Submission:-

6. Learned counsel for the petitioner
submits that during preparation of the
case the counsel advised to file in
additional evidence paper No.49 Ga and
50 Ga which was not within the
knowledge of the revisionist-petitioner
4 All. Smt. Geeta Devi Vs. Additional District Judge/Spl. Judge (Prevention of Corruption Act), Gorakhpur & Ors. 1087
despite due to diligence and as such it
could not be filed before the Trial Court in
SCC Suit No.25 of 2001. He submits that
court below has committed a manifest
error of law to reject the application. In
support of his submissions he relied upon
judgments of Hon'ble Supreme Court in
Jaipur Development Authority Vs.
Kailashwati Devi (Smt.) (1997)7 SCC
297, Union of India Vs. K.V. Lakshman
and others (2016) 13 SCC 124, another
judgment of Hon'ble Supreme Court
dated 6.5.2019 in Civil Appeal No.4628
of 2019 Jiten K. Ajmera & Anr. Vs.
M/s.
Tejas
Co-operative
Housing
Society.

Discussion & Findings:

7. I have carefully considered the
submissions of learned counsels for the
tenant-petitioner.

8. Perusal of the application 30 C
under Order XLI Rule 27 filed by the
tenant-petitioner shows that it does not
contain any averment as to why the
additional evidence was necessary to
decide the real controversy involved in
the
appeal.
The
main
controversy
involved in the revision is with regard to
written permission of the landlord to the
tenant for making structural alteration in
the building and use of the tenanted
premises for purpose other than the
purpose for which it was let out.

9. A supplementary affidavit has
been filed today by the tenant-petitioner
stating that the copies of additional
evidence filed before the revisional court
is being filed as Annexure SA-1. Perusal
of SA-1 shows that it is copies of five
tenders of deposit of rent in SCC Suit
No.25 of 2001 and photostat copies of
two alleged rent receipts dated 05.04.1992
and 17.12.1991 and a photostat copy of
some notice of the Sales Tax Department
and a photostat copy of some certificate
of labour department in the name of M/s.
V.K. Enterprises.

10. The suit was contested by the
tenant for about 16 years. There is no
averment in the application 30 C that why
the aforesaid alleged additional evidence
is necessary to decide the real controversy
involved in the revision. The application
30 C was filed by the tenant-petitioner
allegedly on mere advise of the counsel
and that too after arguments started. Thus,
apart from the fact the application was
frivolous and does not comply with the
provisions of Order XLI Rule 27 CPC, it
also appears that application was filed
merely to delay the disposal of the
revision.

10. The judgment in the case of
Jaipur Development Authority (supra)
relied by learned counsel for the tenantpetitioner has no application on the facts
of the present case inasmuch as facts in
that case were that a suit for permanent
injunction was filed by the plaintiff on
the allegation of possession which was
decreed ex-party and the defendant in
appeal sought to file two documents to
show that the possession was taken over
from the plaintiff long back. In these
circumstances, Hon'ble Supreme Court
held that the application under Order XLI
Rule 27 CPC was wrongly rejected by the
High Court.

11. The judgment in the case of
Union
of
India
Vs.
K.V.
Lakshman(supra) relied by
learned
counsel for the tenant-petitioner also does
not support the case of the petitioner
1088 INDIAN LAW REPORTS ALLAHABAD SERIES
rather law laid down therein is against
him. The facts of that case were that the
Union of India filed a suit for declaration
of ownership of the suit property which
was dismissed by the trial court as barred
by limitation and also on the ground that
the plaintiffs failed to prove their title
over the suit land. In first appeal the
plaintiffs - Union of India filed an
application under Order XLI Rule 27 CPC
for taking in additional evidence the
documents issued by the State Land
Revenue Department in relation to the suit
land. That application was rejected and
the appeal was dismissed by the High
Court. The judgment in the case of Jiten
K. Ajmera (supra) relied by learned
counsel
for
petitioner
is
also
distinguishable on facts as evident from
paragraph 2.4 and paragraph 3.3 of the
said judgment. Facts in that case were that
the appellant of that case requested for
permission to produce two documents
which had come into existence after filing
of the appeal. The plaintiff - Union of
India challenged the judgment of the High
Court before the Hon'ble Supreme Court
questioning the rejection of application
and dismissal of appeal in limine. On
these facts Hon'ble Supreme Court held as
under:-

32) This takes us to the next
question in relation to the application
filed under Order 41 Rule 27 of the Code.
In our considered view, the High Court
committed another error when it rejected
the application filed by the appellant
under Order 41 Rule 27 of the Code. This
application, in our opinion, should have
been allowed for more than one reason.

33) First, there was no one to
oppose the application. In other words,
the respondents were neither served with
the notice of appeal and nor served with
the application and hence they did not
oppose the application. Second, the
appellant averred in the application as to
why they could not file the additional
evidence earlier in civil suit and why
there was delay on their part in filing such
evidence at the appellate stage. Third, the
averments
in
the
application
were
supported
with
an
affidavit,
which
remained
un-rebutted.
Fourth,
the
application also contained necessary
averment as to why the additional
evidence was necessary to decide the real
controversy involved in appeal. Fifth, the
additional evidence being in the nature of
public documents and pertained to suit
land, the same should have been taken on
record and lastly, the appellant being the
Union of India was entitled to legitimately
claim more indulgence in such procedural
matters due to their peculiar set up and
way of working.

(emphasis supplied by me)

12. Thus, all the judgment relied by
learned counsel for the petitioner are
clearly distinguishable on facts of the
present case.

13. As already observed above, the
application of the tenant petitioner
under Order XLI Rule 27 CPC does
not contain necessary averment as to
why
the
additional
evidence
was
necessary to decide the real controversy
involved in the revision. In Union of
India Vs. K.V. Lakshman (supra)
Hon'ble Supreme Court has observed that
such averment is necessary for allowing
the application under Order XLI Rule 27
CPC. This legal position is also reflected
from bare reading of Order XLI Rule 27
CPC which is reproduced below:-

"27. Production of additional
evidence in Appellate Court.- (1) The
4 All. Smt. Geeta Devi Vs. Additional District Judge/Spl. Judge (Prevention of Corruption Act), Gorakhpur & Ors. 1089
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 the produced, by
an Appellate Court, the court shall record
the reason for its admission."

14. Perusal of Order XLI Rule 27
C.P.C. shows that it prohibits the
parties
to
an
appeal
to
adduce
additional evidence either oral or
documentary at the Appellate Court.
However, it provides three exceptions in
which the Appellate Court may allow
such evidence or document to be
produced or witness to be examined.
These exceptions are provided in
clauses (a), (aa) and (b) of Order XLI
Rule 27(1) C.P.C.

15.

In
the
case
Malyalam
Plantations Ltd. vs. State of Kerla,
(2010) 13 SCC 487, (Para-17), Hon'ble
Supreme Court considered the scope of
Order XLI Rule 27 C.P.C. and held as
under:-

"It is equally well-settled that
additional evidence cannot be permitted
to be adduced so as to fill in the lacunae
or to patch up the weak points in the
case. Adducing additional evidence is in
the interest of justice. Evidence relating to
subsequent happening or events which are
relevant for disposal of the appeal,
however, it is not open to any party, at the
stage of appeal, to make fresh allegations
and call upon the other side to admit or
deny the same. Any such attempt is
contrary to the requirements of Order 41
Rule 27 of CPC. Additional evidence
cannot be permitted at the Appellate
stage in order to enable other party to
remove certain lacunae present in that
case."
 (Emphasis supplied by me)

16. In the case of Union Of India vs
Ibrahim Uddin, (2010) 8 SCC 148,
(Paras-36 to 41), Hon'ble Supreme Court
reiterated the principles of Order XLI
Rule 27, C.P.C. laid down by it in its
earlier decisions in the case of K.
Venkataramiah
v.
A.
Seetharama
Reddy & Ors., AIR 1963 SC 1526; The
Municipal Corporation of Greater
Bombay v. Lala Pancham & Ors., AIR
1965 SC 1008; Soonda Ram & Anr. v.
Rameshwaralal & Anr., (1975) 3 SCC
698: AIR 1975 SC 479; Syed Abdul
Khader v. Rami Reddy & Ors., (1979) 2
SCC 601 : AIR 1979 SC 553, Haji
Mohammed
Ishaq
Wd.
S.
K.
Mohammed & Ors. v. Mohamed Iqbal
and Mohamed Ali and Co., AIR 1978
SC 798, State of U.P. v. Manbodhan Lal
Srivastava, AIR 1957 SC 912; S.
Rajagopal v. C.M. Armugam & Ors.,
AIR 1969 SC 101 and held as under:
1090 INDIAN LAW REPORTS ALLAHABAD SERIES

"36. The general principle is
that the Appellate Court should not
travel outside the record of the lower
court and cannot take any evidence in
appeal. However, as an exception, Order
XLI Rule 27 CPC enables the Appellate
Court to take additional evidence in
exceptional circumstances. The Appellate
Court may permit additional evidence
only and only if the conditions laid down
in this rule are found to exist. The parties
are not entitled, as of right, to the
admission
of
such
evidence.
Thus,
provision does not apply, when on the
basis of evidence on record, the Appellate
Court can pronounce a satisfactory
judgment. The matter is entirely within the
discretion of the court and is to be used
sparingly. Such a discretion is only a
judicial discretion circumscribed by the
limitation specified in the rule itself.

37. The Appellate Court should
not, ordinarily allow new evidence to be
adduced in order to enable a party to
raise a new point in appeal. Similarly,
where a party on whom the onus of
proving a certain point lies fails to
discharge the onus, he is not entitled to a
fresh opportunity to produce evidence, as
the Court can, in such a case, pronounce
judgment against him and does not
require any additional evidence to enable
it to pronounce judgment.

38. Under Order XLI , Rule 27
CPC, the appellate Court has the power
to allow a document to be produced and a
witness
to
be
examined.
But
the
requirement of the said Court must be
limited to those cases where it found it
necessary to obtain such evidence for
enabling it to pronounce judgment. This
provision does not entitle the appellate
Court to let in fresh evidence at the
appellate stage where even without such
evidence it can pronounce judgment in a
case. It does not entitle the appellate
Court to let in fresh evidence only for the
purpose of pronouncing judgment in a
particular way. In other words, it is only
for removing a lacuna in the evidence that
the appellate Court is empowered to
admit additional evidence.

39. It is not the business of the
Appellate
Court
to
supplement
the
evidence adduced by one party or the
other in the lower Court. Hence, in the
absence of satisfactory reasons for the
non- production of the evidence in the
trial court, additional evidence should
not be admitted in appeal as a party
guilty of remissness in the lower court is
not entitled to the indulgence of being
allowed to give further evidence under
this rule. So a party who had ample
opportunity to produce certain evidence
in the lower court but failed to do so or
elected not to do so, cannot have it
admitted in appeal.

40. The inadvertence of the
party or his inability to understand the
legal issues involved or the wrong advice
of a pleader or the negligence of a
pleader or that the party did not realise
the importance of a document does not
constitute a "substantial cause" within
the meaning of this rule. The mere fact
that certain evidence is important, is not
in itself a sufficient ground for admitting
that evidence in appeal.

41. The words "for any other
substantial cause" must be read with the
word "requires" in the beginning of
sentence, so that it is only where, for any
other substantial cause, the Appellate
Court requires additional evidence, that
this rule will apply, e.g., when evidence
has been taken by the lower Court so
imperfectly that the Appellate Court
cannot pass a satisfactory judgment."
(Emphasis supplied by me)
4 All. Smt. Geeta Devi Vs. Additional District Judge/Spl. Judge (Prevention of Corruption Act), Gorakhpur & Ors. 1091

18. In the case of Shri Kishore and
another vs. Roop Kishore, 2006 (62)
ALR 414, this Court relied upon a
judgment of Hon'ble Supreme Court in
the case of Natha Singh v. The Financial
Commissioner AIR 1976 SC 1053 and
held that it is only in exceptional and
extraordinary
circumstances
that
the
appellate court may, on its own, direct
production of any document or witness
only to enable it to pronounce the
judgment or for any other substantial
cause. No substantial cause has been
indicated before this Court. The true test
in such a case would be as to whether the
appellate court is able to pronounce the
judgment on the materials before it,
without taking into consideration the
additional evidence sought to be adduced.
The parties cannot be given opportunity to
better the case or adduce additional
evidence only to fill up gaps left out in the
case before the trial court , or else this
would be a never ending process, and the
parties
would
continue
to
move
applications
for
adducing
additional
evidence
at
every
stage
of
the
proceedings.

19. In the case of Shiv Karan and
others vs. Special Judge, E.C. Act and
another, 2011 (1) JCLR 864 (All) (LB),
Lucknow Bench of this Court considered
rejection of application of a case where
the suit was filed in the year 1997 and the
appeal against the order of the Trial Court
was filed in the year 2009 and, thereafter,
an application was filed to receive
additional evidence seeking examination
of marginal witnesses, this Court upheld
the rejection of the application by the
Appellate Court on the ground that the
application so moved was not justified as
giving an opportunity at that stage could
mean to allow for filling up lacunae.

20. In the case of Satish Kumar
Gupta etc. vs. State of Haryana and
others, 2017 (2) JCLR 36 (SC)., Hon'ble
Supreme Court held that it is clear that
neither the Trial Court has refused to
receive the evidence nor it could be said
that the evidence sought to be adduced
was not available despite the exercise of
due diligence nor it could be held to be
necessary to pronounce the judgment.
Additional evidence cannot be permitted
to fill-in the lacunae or to patch-up the
weak points in the case. There was no
ground for remand in these circumstances.

21. In the case of Smt. Ganga Devi
and another vs. Bhagwan Das and
others, 2014 (106) ALR 295, similar
principles were reiterated.

22.

In
MATTERS
UNDER
ARTICLE 227 No. - 4904 of 2017
Prahlad And 7 Others Vs. Chandra
Bhan And 6 Others decided on
07.09.2017, this Court held as under:-

"22. In view of the above
discussion, I find that the general
principle is that the Appellate Court
should not travel outside the record of the
lower court and generaly cannot take any
evidence in appeal. However, as an
exception, Order XLI Rule 27 CPC
enables the Appellate Court to take
additional
evidence
in
exceptional
circumstances. The Appellate Court may
permit additional evidence only and only
if the conditions laid down in this rule are
found to exist. The parties are not entitled,
as of right, to the admission of such
evidence. Thus, provision does not apply,
when on the basis of evidence on record,
the Appellate Court can pronounce a
satisfactory judgment. The matter is
entirely within the discretion of the Court
1092 INDIAN LAW REPORTS ALLAHABAD SERIES
and is to be used sparingly. Such a
discretion is only a judicial discretion
circumscribed by the limitation specified
in the rule itself. The Appellate Court
should not, ordinarily allow new evidence
to be adduced in order to enable a party
to raise a new point in appeal. Similarly,
where a party on whom the onus of
proving a certain point lies fails to
discharge the onus, he is not entitled to a
fresh opportunity to produce evidence, as
the Court can, in such a case, pronounce
judgment against him and does not
require any additional evidence to enable
it to pronounce judgment. Under Order
XLI , Rule 27 CPC, the appellate Court
has the power to allow a document to be
produced and a witness to be examined.
But the requirement of the said Court
must be limited to those cases where it
found it necessary to obtain such evidence
for enabling it to pronounce judgment.
This provision does not entitle the
appellate Court to let in fresh evidence at
the appellate stage where even without
such evidence it can pronounce judgment
in a case. It does not entitle the appellate
Court to let in fresh evidence only for the
purpose of pronouncing judgment in a
particular way. It is not the business of
the Appellate Court to supplement the
evidence adduced by one party or the
other in the lower Court. Hence, in the
absence of satisfactory reasons for the
non- production of the evidence in the
trial court, additional evidence should not
be admitted in appeal as a party guilty of
remissness in the lower court is not
entitled to the indulgence of being
allowed to give further evidence under
this rule. So a party who had ample
opportunity to produce certain evidence
in the lower court but failed to do so or
elected not to do so, cannot have it
admitted in appeal. The inadvertence of
the party or his inability to understand the
legal issues involved or the wrong advice
of a pleader or the negligence of a
pleader or that the party did not realise
the importance of a document, do not
constitute a "substantial cause" within the
meaning of this rule. The mere fact that
certain evidence is important, is not in
itself a sufficient ground for admitting that
evidence in appeal."

23. In Satya Narayan Vs. Smt.
Mohini Devi And Another in MATTERS
UNDER ARTICLE 227 No. - 8925 of
2017, decided on 03.01.2018, this Court
has taken similar view.

24. Thus, it is settled law that the
Appellate Court should not travel outside
the record of the lower court. It is also
equally
well-settled
that
additional
evidence cannot be permitted to be
adduced so as to fill in the lacunae or to
patch up the weak points in the case.
However, an exception is provided in
Order XLI Rule 27 CPC that additional
evidence may be produced in the
Appellate Court if the Court from whose
decree the appeal is preferred has refused
to admit evidence which ought to have
been admitted or 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 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. An application under
Order XLI Rule 27 C.P.C. must contain
necessary
averment
as
to
why
additional evidence is necessary to
decide the real controversy involved in
4 All. Pradeep Kumar Awasthi Vs. State of U.P. & Ors.
1093
the Appeal or revision. In the case of
Union of India Vs. Ibrahimuddin and
another 2012(8)SCC 148 (paras 36 to 41)
Hon'ble Supreme Court interpreted the phrase
"for any other substantial cause" and held that
it must be read with the word "requires" in the
beginning of sentence, so that it is only
where, for any other substantial cause, the
Appellate
Court
requires
additional
evidence, that this rule will apply. It was
further held that it is not the business of the
Appellate Court to supplement the evidence
adduced by one party or the other in the lower
Court. In the absence of satisfactory reasons
for non- production of the evidence in the
trial court, additional evidence should not
be permitted in appeal as a party guilty of
remissness in the lower court is not entitled
to the indulgence of being allowed to give
further evidence. A party who had ample
opportunity to produce certain evidence in the
lower court but failed to do so or elected not to
do so, cannot have it admitted in appeal. The
inadvertence of the party or his inability to
understand the legal issues involved or the
wrong advice of a pleader or the negligence
of a pleader or that the party did not realise
the importance of a document, does not
constitute a "substantial cause" within the
meaning of this rule. The mere fact that
certain evidence is important, is not in itself a
sufficient ground for admitting that evidence
in appeal. In Shri Kishore and another vs.
Roop Kishore, 2006 (62) ALR 414 this
Court relied upon a judgmnet of Hon'ble
Supreme Court in the case of Natha Singh v.
The Financial Commissioner AIR 1976 SC
1053 and held that it is only in exceptional and
extraordinary circumstances that the appellate
court may, on its own, direct production of
any document or witness only to enable it to
pronounce the judgment or for any other
substantial cause. The parties are not entitled,
as of right, to the admission of such evidence.
Thus, provision does not apply, when on the
basis of evidence on record, the Appellate
Court can pronounce a satisfactory judgment.
The matter is entirely within the discretion of
the Court and is to be used sparingly. Such a
discretion is only a judicial discretion
circumscribed by the limitation specified in
the rule itself. The Appellate Court should not,
ordinarily allow new evidence to be adduced
in order to enable a party to raise a new point
in appeal. Similarly, where a party on whom
the onus of proving a certain point lies fails to
discharge the onus, he is not entitled to a fresh
opportunity to produce evidence, as the Court
can, in such a case, pronounce judgment
against him and does not require any
additional evidence to enable it to pronounce
judgment.

24. Applying the principles of law
laid down in the above referred judgments
of this Court and of Hon'ble Supreme
Court on the facts of the present case as
discussed above, I do not find any merit
in this writ petition. Therefore, the writ
petition is dismissed.
----------
(2019)12 ILR A1093

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2019

BEFORE
THE HON'BLE ASHWANI KUMAR MISHRA, J.

Writ-A No. 6087 of 2019

Pradeep Kumar Awasthi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ram Raj Mishra, Sri Anand Mohan
Pandey, Sri Vikas Budhwar

Counsel for the Respondents:
C.S.C.