Kartik vs Madan Singh And Others

Manoj Kumar Tiwari, J

This writ petition has been directed against the order dated 30.07.2019 passed by IIIrd Additional District & Sessions Judge, Udham Singh Nagar in

Civil Appeal No. 20 of 2018. By the said order, application filed by the petitioner under Order 41 Rule 27 C.P.C. for adducing additional evidence at

the appellate stage has been rejected.

Hon’ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin and another, reported in (2012) 8 SCC 148, has held that application

under Order 41 Rule 27 C.P.C. for adducing additional evidence shall be considered at the stage of final hearing. Paragraph nos. 36 to 49 of the said

judgment are reproduced below:

“48. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter

of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated

in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in

respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether

the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the

appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the

evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the

application should not be moved at a belated stage.

Stage of Consideration

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 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 taking into

consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes

to the conclusion that some inherent lacuna or defect becomes apparent to the Court.â€​

In the present case, the impugned order has been passed by the First Appellate Court not at the stage of final hearing; but, a much prior stage.

In such view of the matter, the writ petition is allowed. Impugned order dated 30.07.2019 is set aside and it is provided that petitioner’s

application under Order 41 Rule 27 C.P.C. shall be considered at the stage of final hearing.

Let a certified copy of this order be issued within 24 hours.