Summary
Before allowing a party to lead additional evidence under Order XLI Rule 27(1) CPC, the appellate court must first examine that party's pleadings to see whether the case sought to be supported by the additional evidence has been pleaded. The High Court, which reversed a decree for specific performance on the strength of additional documents admitted without that examination, was set aside and the first appeal remanded for fresh consideration.
Issues
- Whether an appellate court must consider the pleadings of the party seeking to lead additional evidence under Order XLI Rule 27(1) CPC before adjudicating the application.
- Whether the High Court was justified in allowing the defendant's application for additional evidence and reversing the decree for specific performance on that basis.
Provisions considered
- Order XLI Rule 27(1), Code of Civil Procedure, 1908The rule bars parties from producing additional evidence in the appellate court except where the trial court wrongly refused evidence, the party establishes that despite due diligence the evidence was not within its knowledge or could not be produced, or the appellate court itself requires it to pronounce judgment or for any other substantial cause. The Court held that, in addition to these requirements, the appellate court must examine whether the pleadings of the applicant support the case the additional evidence is meant to establish; the High Court allowed the defendant's application without doing so. (¶¶ 1, 7, 8, 9, 10)
Held
- Before considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) CPC, the appellate court must first examine that party's pleadings to gather whether the case sought to be set up has been pleaded so as to support the additional evidence proposed. In the absence of such pleadings, permitting additional evidence would be an unnecessary exercise, as evidence so led may not be capable of being taken into consideration. Permission can be granted only after the court is satisfied, on this examination as well as on the requirements of the rule, that a case under Order XLI Rule 27(1) is made out. (¶ 8)
- The plaintiffs pleaded that they had sold immovable properties to fund the purchase; the defendant's written statement merely stated that this was not within his knowledge. The High Court allowed the defendant to produce house-tax, encumbrance, sale-deed and city-survey records to show that no such sale took place, without examining whether that case was supported by his pleadings, and then relied on them to reverse the decree for specific performance. This was an error warranting reconsideration of the appeal afresh. (¶¶ 5.5, 6, 7, 8, 9)
- Because the matter was being remanded for fresh consideration, the Court did not examine the appellants' grievance about the High Court's delay in delivering judgment after reserving it. (¶ 9)
Result
Appeal allowed. Judgment and order dated 30.12.2008 of the High Court in RFA No. 440 of 2000 set aside; proceedings remanded to the High Court to reconsider the appeal, along with the defendant's application under Order XLI Rule 27(1) CPC, afresh in accordance with law. High Court requested to expedite the appeal given that the suit was filed in 1997; no opinion expressed on merits; parties to bear their own costs.