Mrutunjoy Lenka and Others vs Gagan Kishore Swain (Dead) and after him his L.Rs. and Others

S.C. Mohapatra, J.—Rejection of an application for adducing additional evidence before delivery of judgment by the appellate Court is

grievance of the appellant-petitioners in this Civil Revision.

For the purpose of considering whether additional evidence is to be entertained by the appellate Court, first it is to be examined whether the

evidence sought to be adduced is relevant and admissible. If admissibility of document would require proof through oral evidence, court is to

consider whether such opportunity is to be given. This would depend upon three circumstances as indicated in Order 41, Rule 27, C.P.C. Where

a party was not in possession of the additional evidence at the time of trial, he can be given opportunity to bring in the same to record and for the

purpose of bringing them to record, court is to assist that party. Where despite the evidence being produced court refused to entertain the same,

appellate Court can give opportunity to the party for bringing the materials to record in accordance with law. The third ground is a discretion of the

court. Where appellate Court feels that for proper adjudication of the suit the materials ought to be entertained, it can also entertain the same

although the first two grounds are not satisfied. Therefore, it is always desirable to consider the application for additional evidence along with the

merits of appeal so that court can consider whether on the facts and in the circumstances of the case the additional evidence would be

entertainable.

In this case public documents are sought to be adduced as additional evidence. There is no dispute that they are relevant. There is also no

dispute that they are admissible without proof. It may be that explanations would be necessary from the respondents. In case appellants are guilty

in not bringing those materials to record, the prejudice caused to the respondents by pro-longed litigation can be mitigated by directing to pay

adequate costs. Appellate court ought not to have rejected the same on the ground that they were not produced though appel- ants had

opportunity to produce the same previously. 1 may make it clear that the appellate Court can consider whether on the basis of the pleadings those

documents would be entertained as evidence for proper adjudi- cation of the appeal, as no evidence can be entertained if there is no pleading in

support.

Since appellants had filed the petition for additional evidence after the hearing of appeal was closed, I direct that plaintiff-respondents shall be

paid costs of Rs. 500/-(Rupees five hundred) within one month from today in the appellate Court. On payment of Rs. 500/- to plaintiff-

respondents or depositing the same in court for payment, appellate Court shall bear the application for additional evidence along with merits of the

appeal, subject to the observations made above.

In result, Civil Revision is allowed to the extenAt indicated above.