Summary
The Court set aside dismissal of a first appeal because the High Court had not decided the plaintiff’s pending application to produce additional evidence. Admission of additional evidence is discretionary and subject to the statutory conditions, but the application cannot be ignored when disposing of the appeal. The matter was remitted for fresh disposal, without granting specific performance or directing automatic admission of the documents.
Issues
- Whether the first appellate court could dismiss the appeal without deciding the pending application for additional evidence.
- What particulars and service an application to produce additional documents should include.
Provisions considered
- Section 107 and Order XLI Rule 27, Code of Civil Procedure, 1908Additional evidence is an exception to deciding an appeal on the existing record and requires a decision under the prescribed conditions. (¶¶ 8, 9, 10)
Held
- The appellate court ordinarily proceeds on the lower court’s record. Section 107 permits additional evidence subject to Order XLI Rule 27; grant or refusal is within appellate discretion. Dismissing the appeal without deciding the pending application resulted in miscarriage of justice. (¶¶ 8, 10)
- The application should list the documents with full particulars, and copies should be served on the other side. Where a case for admission is established, the additional material must be considered in disposing of the appeal according to law. (¶ 9)
- The High Court was required to consider the matter afresh. The Court set aside the appellate judgment and remitted the matter without determining the claim for specific performance or itself admitting the proposed evidence. (¶¶ 10, 11, 12)
Result
Appeal partly allowed. High Court judgment set aside and matter remitted for fresh disposal in accordance with law and the stated observations; no costs.