# Smt. Surendra Kaur & Ors v. Vivek Gupta & Ors

- **Citation:** (2023) 5 ILRA 290
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023
- **Case number:** Matters Under Article 227 No. 4405 of 2019
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-surendra-kaur-ors-v-vivek-gupta-ors-45147
- **Pages:** 7

## Headnote

A. Civil Law - Admission of Additional
Evidence - Code of Civil Procedure1908 -
Order 41 Rule 27, Section 107(1)(d) - The
basic principle of admission of additional
evidence is that the person seeking
admission of additional evidence should
be able to establish that with the best
efforts such additional evidence could not
have been adduced at the first instance.
(Para 7)

As a general rule, in terms of sub-rule (1) of
Rule 27, the appellate court is to decide an
appeal on the evidence led by the parties before
the trial court and is not to admit additional
evidence for the purpose of disposal of an
appeal. Section 107(1)(d), however carves out
an exception to the general rule, and empowers
the appellate court to take additional evidence
or requires such evidence to be taken subject to
the conditions laid down in Rule 27 of Order 41.
(Para 6)

There are conditions precedent before allowing
a party to adduce additional evidence at the
stage of appeal, which specifically incorporates
conditions to the effect that the party in spite of
due diligence could not produce the evidence
and the same cannot be allowed to be done at
his leisure or sweet will. (Para 11)

B. The appellate court should not pass an
order so as to patch up the weakness of
the evidence of the unsuccessful party
before the trial court, but it will be
different if the court itself requires the
evidence to do justice between the
parties. The ability to pronounce judgment is
to be understood as the ability to pronounce
judgment satisfactorily to the mind of the court.
But mere difficulty is not sufficient to issue such
direction. (Para 12)

C. Power of superintendence conferred
u/Article 227, is to be exercised most
sparingly and within the parameters laid down
by the Supreme Court. (Para 14)

Petitioners have not been able to dispute the
aforementioned legal position. They have not
been able to point out as to how the conditions
precedent mentioned u/Order 41 Rule 27 (1)
were satisfied in their case so as to enable the
additional evidence to be admitted by the
appellate court, nor has been able to point out
any material error or irregularity in the order
passed by the court below so as to warrant
interference in exercise of power under Article
227 of the Constitution of India. (Para 13, 15)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

290 INDIAN LAW REPORTS ALLAHABAD SERIES
much clear that suit is maintainable and
judgment and decree can be passed.
Therefore, this argument of learned counsel
for the petitioner is also having no force.

40. In light of facts and circumstances
of the case as well as law discussed
hereinabove, no case is made out for
interference in the impugned orders. The
petition lacks merit and is, accordingly,
dismissed. No order as to costs.
----------
(2023) 5 ILRA 290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2019

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 4405 of 2019
(CIVIL)

Smt. Surendra Kaur & Ors. ...Petitioners
Versus
Vivek Gupta & Ors. ...Respondents

Counsel for the Petitioners:
Sri Vijay Mani Tiwari

Counsel for the Respondent:
Sri Pankaj Agarwal

A. Civil Law - Admission of Additional
Evidence - Code of Civil Procedure1908 -
Order 41 Rule 27, Section 107(1)(d) - The
basic principle of admission of additional
evidence is that the person seeking
admission of additional evidence should
be able to establish that with the best
efforts such additional evidence could not
have been adduced at the first instance.
(Para 7)

As a general rule, in terms of sub-rule (1) of
Rule 27, the appellate court is to decide an
appeal on the evidence led by the parties before
the trial court and is not to admit additional
evidence for the purpose of disposal of an
appeal. Section 107(1)(d), however carves out
an exception to the general rule, and empowers
the appellate court to take additional evidence
or requires such evidence to be taken subject to
the conditions laid down in Rule 27 of Order 41.
(Para 6)

There are conditions precedent before allowing
a party to adduce additional evidence at the
stage of appeal, which specifically incorporates
conditions to the effect that the party in spite of
due diligence could not produce the evidence
and the same cannot be allowed to be done at
his leisure or sweet will. (Para 11)

B. The appellate court should not pass an
order so as to patch up the weakness of
the evidence of the unsuccessful party
before the trial court, but it will be
different if the court itself requires the
evidence to do justice between the
parties. The ability to pronounce judgment is
to be understood as the ability to pronounce
judgment satisfactorily to the mind of the court.
But mere difficulty is not sufficient to issue such
direction. (Para 12)

C. Power of superintendence conferred
u/Article 227, is to be exercised most
sparingly and within the parameters laid down
by the Supreme Court. (Para 14)

Petitioners have not been able to dispute the
aforementioned legal position. They have not
been able to point out as to how the conditions
precedent mentioned u/Order 41 Rule 27 (1)
were satisfied in their case so as to enable the
additional evidence to be admitted by the
appellate court, nor has been able to point out
any material error or irregularity in the order
passed by the court below so as to warrant
interference in exercise of power under Article
227 of the Constitution of India. (Para 13, 15)

Writ petition dismissed. (E-4)

Precedent followed:

1. Shivajirao Nilangekar Patil & ors. Vs Mahesh
Madhav Gosavi & ors., (1987) 1 SCC 227 (Para 7)
5 All. Smt. Surendra Kaur & Ors. Vs. Vivek Gupta & Ors.
291
2. K.R. Mohan Reddy Vs Net Work Inc., (2007)
14 SCC 257 (Para 10)

3. State of Gujarat Vs Mahendra Kumar
Parshottambhai Desai (dead) by L.Rs., AIR 2006
SC 1864 (Para 10)

4. Municipal Corporation of Greater Bombay Vs
Lal Pancham & ors. , AIR 1965 SC 1008 (Para
10)

5. State of Karnataka & anr. Vs K.C. Subramanya
& ors. , (2014) 13 SCC 468 (Para 11)

6. North Eastern Railway Amn. Vs Bhagwan Das,
(2008) 8 SCC 511 (Para 12)

7. N. Kamalam Vs Ayyasamy, (2001) 7 SCC 503
(Para 12)

8. Union of India Vs Ibrahim Uddin, (2012) 8
SCC 148 (Para 12)

9. A. Andisamy Chettiar Vs A. Subhuraj Chettiar,
(2015) 17 SCC 713 (Para 12)

10. Shalini Shyam Shetty & anr. Vs Rajendra
Shankar Patil, (2010) 8 SCC 329 (Para 14)

11. Radhey Shyam & anr. Vs Chhabi Nath & ors.
, (2015) 5 SCC 423 (Para 14)

Present petition challenges order dated
16.04.2019 passed by District Judge,
Aligarh, whereby the application filed by
the petitioners-tenant seeking to adduce
additional evidence under Order 41 Rule
27 C.P.C. has been rejected.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Vijay Mani Tiwari,
learned counsel for the petitioners and Sri
Pankaj Agarwal, learned counsel for the
respondents.

2. The present petition seeks to
challenge the order dated 16.04.2019,
passed by the District Judge, Aligarh in
U.P.U.B. Appeal No.15 of 2017 (Smt.
Surendra Kaur and others Vs. Vivek Gupta
and others), whereby, the application filed
by
the
petitioners-tenant
(Application
No.11 Ga) seeking to adduce additional
evidence under Order 41 Rule 27 C.P.C.
has been rejected.

3. Learned counsel for the petitioners
has placed reliance upon the Application
No. 11 Ga, which had been filed in Appeal
and submits that the petitioners' evidence
was required to be adduced for the reason
that the earlier counsel did not effectively
pursue the case and did not tender proper
advise and as such it was necessary that the
evidence be permitted to be adduced at the
stage of appeal.

4. The court below has rejected the
aforementioned contention by stating that
additional evidence could only be taken as
per the provisions under Order 41 Rule 27
of the Code of Civil Procedure, and lack of
proper legal advice or inadvertence could
not be a ground for adducing additional
evidence.

5. Rule 27 under Order 41 of the Code
of
Civil
Procedure
enumerates
the
circumstances in which the appellate court
may admit additional evidence, whether
oral or documentary in appeal, and they are
as under :-

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

(ii)
Where
such
additional
evidence was not within the knowledge of
the party or could not, after the exercise of
due diligence, be produced by him at the
time when the decree appealed against was
passed, or
292 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Where the appellate court
requires such evidence either to enable it to
pronounce judgment, or for any other
substantial cause.

6. As a general rule, in terms of subrule (1) of Rule 27, the appellate court is to
decide an appeal on the evidence led by the
parties before the trial court and is not to
admit additional evidence for the purpose
of disposal of an appeal. Section 107 (1)
(d), however carves out an exception to the
general rule, and empowers the appellate
court to take additional evidence or
requires such evidence to be taken subject
to the conditions laid down in Rule 27 of
Order 41.

7. In Shivajirao Nilangekar Patil and
Ors. Vs. Mahesh Madhav Gosavi and
Ors.1, it was held that the basic principle of
admission of additional evidence is that the
person seeking admission of additional
evidence should be able to establish that
with the best efforts such additional
evidence could not have been adduced at
the first instance. The relevant observations
in the aforementioned judgment are as
follows :-

"27......The basic principle of
admission of additional evidence is that the
person seeking the admission of additional
evidence should be able to establish that
with the best efforts such additional
evidence could not have been adduced at
the first instance. Secondly the party
affected by the admission of additional
evidence should have an opportunity to
rebut such additional evidence. Thirdly,
that additional evidence was relevant for
the determination of the issue......"

8. In the case at hand, the application
of the petitioners for adducing additional
evidence in the appellate court would be
referable to sub-rule (aa) under Order 41
Rule 27 (1).

9. The aforementioned sub-rule (aa)
was
introduced
in
terms
of
C.P.C.
(Amendment) Act 104 of 1976 as another
ground on which additional evidence may
be produced in the appellate court. The
intention of Rule 27 (1) (aa) is that the
party who, for reasons mentioned therein,
was unable to produce the evidence in the
trial court, should be enabled to produce
the same in the appellate court. In the event
sub-rule (aa) under Order 41 Rule 27 (1) is
to be applied, the onus is on the applicant
to show that the ingredients or conditions
precedent therein are satisfied.

10. The
conditions
required
for
application of sub-rule (aa) under Order 41
Rule 27(1) came up for consideration in the
case of K.R.Mohan Reddy Vs. Net Work
Inc.2 The Supreme Court after referring to
the earlier judgments in the case of State of
Gujarat
Vs.
Mahendra
Kumar
Parshottambhai Desai (dead) by L.Rs.3
and Municipal Corporation of Greater
Bombay Vs. Lal Pancham and others,4 in
the context of adduction of additional
evidence at the appellate stage in terms of
provisions under Order 41 Rule 27 (1), held
that in the event sub-rule (aa) is to be
applied, the onus would be on the applicant
to show that the ingredients or conditions
precedent mentioned therein are satisfied,
and a good reason must also be shown as to
why the evidence was not produced before
the trial court. The observations made in
the aforementioned judgment are as follows
:-

"15.
The
High
Court,
unfortunately did not enter into the said
questions at all. As indicated hereinbefore,
5 All. Smt. Surendra Kaur & Ors. Vs. Vivek Gupta & Ors.
293
the High Court proceeded on the basis as if
Clause(b) of Sub-rule (1) of Rule 27 of
Order XLI of CPC was applicable.

16. It is now a trite law that the
conditions precedent for application of
Clause (aa) of Sub-rule (1) of Rule 27 of
Order XLI is 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 Clause(b) to Sub-rule (1) of
Rule 27 of Order XLI of CPC is to be taken
recourse to, the appellate Court was 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 was necessary.

17. The fact that the High Court
failed to do so, in our opinion, amounts to
misdirection in law. Furthermore, if the
High Court is correct in its view that the
plaintiff-respondent had proceeded on the
basis that the suit in its entirely based on a
cheque, wherefor, it was not necessary for it
to file the books of accounts before the trial
Court, finding contrary thereto could not
have been arrived at that the same was in
fact required to be proved so as to enable
the appellate Court to arrive at a just
conclusion.

18. The Supreme Court in State of
Gujarat
v.
Mahendra
Kumar
Parshottambhai Desai(dead) by L.Rs. AIR
2006 SC 1864 relying upon Municipal
Corporation of Greater Bombay v. Lal
Pancham and Ors., held as under:

Though the appellate Court has
the power to allow a document to be
produced and a witness to be examined
under Order XLI Rule 27 CPC, 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 did not entitle the appellate court
to let in fresh evidence at the appellate
stage where even without such evidence it
can pronounce judgment in the case. It
does not entitle the appellate court to let in
fresh evidence only for purposes of
pronouncement of judgment in a particular
way.

19. Appellate Court should not
pass an order so as to patch up the
weakness
of
the
evidence
of
the
unsuccessful party before the trial Court,
but it will be different if the Court itself
require the evidence to do justice between
the parties. The ability to pronounce
judgment is to be understood as the ability
to pronounce judgment satisfactorily to the
mind of the Court. But mere difficulty is not
sufficient to issue such direction. While
saying so, however, we do not mean that
the Court at an appropriate stage would be
precluded
from
considering
the
applicability of Clause (b)."

11. The conditions precedent for grant
of permission for production of additional
evidence at appellate stage under Order 41
Rule 27 (1) (aa), were restated in the case
of State of Karnataka and another Vs.
K.C.Subramanya
and
others.5
The
relevant observations made in the judgment
are as follows :-

"4. However, we do not feel
impressed with this argument and deem it
fit to reject it in view of Order 41 Rule
27(1)(aa) which clearly states as follows:

"27. (1)(a)***

(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
294 INDIAN LAW REPORTS ALLAHABAD SERIES
time when the decree appealed against was
passed, or

(b) ***"

On perusal of this provision, it is
unambiguously clear that the party can
seek liberty to produce additional evidence
at the appellate stage, but the same can be
permitted only if the evidence sought to be
produced could not be produced at the
stage of trial in spite of exercise of due
diligence and that the evidence could not
be produced as it was not within his
knowledge and hence was fit to be
produced by the appellant before the
appellate forum.

5. It is thus clear that there are
conditions precedent before allowing a
party to adduce additional evidence at the
stage
of
appeal,
which
specifically
incorporates conditions to the effect that
the party in spite of due diligence could not
produce the evidence and the same cannot
be allowed to be done at his leisure or
sweet will."

12.
Placing
reliance
upon
the
judgments in the case of K.R.Mohan
Reddy Vs. Net Work Inc.2, North Eastern
Railway Admn. Vs. Bhagwan Das6, N.
Kamalam Vs. Ayyasamy7 and Union of
India Vs. Ibrahim Uddin8, the principles
with regard to adduction of additional
evidence
at
appellate
stage
were
summarized in the case of A.Andisamy
Chettiar Vs. A.Subburaj Chettiar,9 and it
was stated that unless conditions mentioned
under Order 41 Rule 27 are fulfilled,
additional evidence cannot be adduced at
appellate stage. The relevant extract from
the judgment is as follows :-

"11. Under the scheme of the
Code of Civil Procedure, 1908 (for short
"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 Section
107(1)(d) read with Rule 27 of Order 41 of
the Code. Rule 27 of Order 41 reads as
under:

"27.Production
of
additional
evidence in appellate court.--(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) Wherever additional evidence
is allowed to be produced by an appellate
court, the court shall record the reason for
its admission."

12. From the opening words of
sub-rule (1) of Rule 27, quoted above, it is
clear that the parties are not entitled to
produce additional evidence whether oral
or documentary in the appellate court, but
for the three situations mentioned above.
The parties are not allowed to fill the
lacunae at the appellate stage. It is against
5 All. Smt. Surendra Kaur & Ors. Vs. Vivek Gupta & Ors.
295
the spirit of the Code to allow a party to
adduce
additional
evidence
without
fulfilment of either of the three conditions
mentioned in Rule 27. In the case at hand,
no application was moved before the trial
court seeking scientific examination of the
document (Ext.A-4),nor can it be said that
the plaintiff with due diligence could not
have moved such an application to get
proved the documents relied upon by him.
Now it is to be seen whether the third
condition i.e. one contained in clause (b) of
sub-rule (1) of Rule 27 is fulfilled or not.

13. In K.R. Mohan Reddy v. Net
Work Inc. [K.R. Mohan Reddy v. Net Work
Inc., (2007) 14 SCC 257] this Court has
held as under: (SCC p. 261, para 19)

"19. The appellate court should
not pass an order so as to patch up the
weakness
of
the
evidence
of
the
unsuccessful party before the trial court,
but it will be different if the court itself
requires the evidence to do justice between
the parties. The ability to pronounce
judgment is to be understood as the ability
to pronounce judgment satisfactorily to the
mind of the court. But mere difficulty is not
sufficient to issue such direction."

14. In North Eastern Railway Admn. v.
Bhagwan Das [North Eastern Railway
Admn. v. Bhagwan Das, (2008) 8 SCC
511] this Court observed thus: (SCC pp.
515-16, para 13)

"13. Though the general rule is
that ordinarily the appellate court should
not travel outside the record of the lower
court and additional evidence, whether oral
or documentary is not admitted but Section
107 CPC, which carves out an exception to
the general rule, enables an appellate court
to take additional evidence or to require
such evidence to be taken subject to such
conditions and limitations as may be
prescribed. These conditions are prescribed
under Order 41 Rule 27 CPC. Nevertheless,
the additional evidence can be admitted
only when the circumstances as stipulated
in the said Rule are found to exist."

15. In N.Kamalam v. Ayyasamy
[N.Kamalam v. Ayyasamy, (2001) 7 SCC
503] this Court, interpreting Rule 27 of
Order 41 of the Code, has observed in para
19 as under:(SCC p. 514)

"19. ... the provisions of Order 41
Rule 27 have not been engrafted in the
Code so as to patch up the weak points in
the case and to fill up the omission in the
court of appeal-- it does not authorise any
lacunae or gaps in the evidence to be filled
up. The authority and jurisdiction as
conferred on to the appellate court to let in
fresh evidence is restricted to the purpose
of pronouncement of judgment in a
particular way."

16. In Union of India v. Ibrahim
Uddin [Union of India v. Ibrahim Uddin,
(2012) 8 SCC 148 : (2012) 4 SCC (Civ)
362] this Court has held as under: (SCC p.
171, para 49)

"49. An application under Order
41 Rule 27 CPC is to be considered at the
time of hearing of appeal on merits so as to
find out whether the documents and/or the
evidence sought to be adduced have any
relevance/bearing on the issues involved.
The admissibility of additional evidence
does not depend upon the relevancy to the
issue on hand, or on the fact, whether the
applicant had an opportunity for adducing
such evidence at an earlier stage or not, but
it depends upon whether or not the
appellate court requires the evidence sought
to be adduced to enable it to pronounce
judgment or for any other substantial cause.
The true test, therefore is, whether the
appellate court is able to pronounce
judgment on the materials before it without
296 INDIAN LAW REPORTS ALLAHABAD SERIES
taking into consideration the additional
evidence sought to be adduced."

13. Counsel for the petitioners has not
been able to dispute the aforementioned
legal position.

14. This Court may also take notice of
the fact that the power of superintendence
conferred under Article 227, is to be
exercised most sparingly and within the
parameters which have been summarized in
the case of Shalini Shyam Shetty and
another Vs. Rajendra Shankar Patil10,
and also in the case of Radhey Shyam and
another Vs. Chhabi Nath and others11.

15. Learned counsel for the petitioners
have not been able to point out as to how
the conditions precedent mentioned under
Order 41 Rule 27 (1) were satisfied in their
case so as to enable the additional evidence
to be admitted by the appellate court, nor
has been able to point out any material
error or irregularity in the order passed by
the
court
below
so
as
to
warrant
interference in exercise of power under
Article 227 of the Constitution of India.

16. The petition lacks merit and it is,
accordingly, dismissed.
----------
(2023) 5 ILRA 296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matters Under Article 227 No. 5967 of 2022

Matters Under Article 227 No. 5348 of 2022

U.P. Sunni Central Waqf Board, Lucknow
 ...Petitioner
Versus
Bhagwan Sri Krishna Virajman & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
Punit
Kumar
Gupta,
Ms.
Poorva
Agarwal, Sri Nasiruzzaman, Sri W.H. Khan
(Sr. Advocate), Sri S.F.A. Naqvi (Sr.
Advocate)

Counsel for the Respondents:
Sri Prabhash Pandey, Sri Birendra Prasad
Maurya,Sri Kamlesh Narayan Pandey, Ms.
Pooja Agarwal, Sri Prabhash Pandey, Ms.
Priyanka Swami, Ms. Ritu Bhardwaj, Sri
Pradeep Sharma, Mrs. Garima Prasadh, Sr.
Advocate/Add. A.G.

A. Civil Law - Jurisdiction u/Art. 226, 227
- A plaint duly instituted u/s 26 of the CPC
has to be registered and in light of
provisions contained in Section 27 of CPC,
if the suit is duly instituted, summons
have to be issued to the Defendants. The
Trial Court treated the Plaint as a Misc. Case
and decided a question of maintainability of the
suit which is not permissible in law. The Civil
Judge (S.D.), has not even exercised its powers
u/Order 7 Rule 11 of the CPC and has rejected
the plaint duly presented by treating it as a
Miscellaneous Case. There is no provision in
CPC to register any regular suit as a
Miscellaneous Case. The Plaintiffs had not
filed any application which could be
treated as a Misc. Case. The Plaintiffs had
filed Suit. The Trial Court therefore clearly
committed manifest error of law in registering
the suit as a Miscellaneous case and hearing it
on the question of maintainability. (Para 12, 17)

B. It is well settled that if an appeal has
been filed against an order or decree
against which no appeal is maintainable,
the Court can treat the appeal as revision.
The Plaintiffs had filed an Appeal against the
order dated 30.09.2020 treating the order to be
passed u/Order 7 Rule 11 CPC. The District
Judge held by order dated 18.01.2021 that the
order dated 30.09.2020 could not be treated as
an order u/Order 7 Rule 11 CPC and therefore
held that Appeal was not maintainable, Revision