What is ‘additional evidence? Can it be permitted to be produced in appellate court? If yes, under what circumstances.

Question: What is ‘additional evidence? Can it be permitted to be produced in appellate court? If yes, under what circumstances.

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Answer

As a general rule, the appellate court shall decide an appeal on the evidence led by the parties before the trial court and should not admit additional evidence for the purpose of disposal of an appeal. Sub Rule (1) of Rule 27 also reads thus, “The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court.”

Section 107(1)(d), however, is an exception to the general Rule and empowers an appellate court to take additional evidence or require such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41.

The term “additional evidence” does not mean evidence over and above the evidence led by the party in the lower court. Such a view would be introducing an additional condition not contemplated by the Code There should be no distinction between a party who has led some evidence and a party who has not led evidence at all. All that is required is that the conditions laid down in the Code for leading of additional evidence must be fulfilled.

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, the additional evidence must be relevant for the determination of the issue.

When a party is unable to produce the evidence in the trial court under the circumstances mentioned in the Code, he should be allowed to produce the same in an appellate court. The power is discretionary and should be exercised on sound judicial principles and in the interests of justice.

Rule 27 enumerates the circumstances in which the appellate court may admit additional evidence, whether oral or documentary, in appeal. They are as under:

1. 1. Where the lower court has improperly refused to admit evidence which ought to have been admitted; or
   2. Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree; or
   3. Where the appellate court itself requires such evidence either

1. To enable it to pronounce judgment or
2. For any other substantial cause.

In Shivajirao Nilangekar v. Mahesh Madhav,[(1987) 1 SCC 227], the Supreme Court stated, “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.”

In K.R. Mohan Reddy v. NetWork INC,[(2007) 14 SCC 257], the Supreme Court stated that clauses (a), (aa) and (b) of Rule 27(1) refer to three different situations. For exercising jurisdiction thereunder, the appellate court must record a finding that one or the other conditions of Rule 27(1) is satisfied.

1. Improper refusal to admit the evidence- Where the lower court has refused to admit evidence that was tendered and which ought to have been admitted, the appellate court may admit such evidence at the appellate stage. The expression ought to have been admitted means should be admitted in the exercise of sound discretion. The appellate court, therefore, before admitting additional evidence must be satisfied that the trial court was unjustified in refusing to admit such evidence.

Thus, where the lower court has refused to take certain evidence on the ground of its late production, such rejection cannot be said to be unjustified and the appellate court should not interfere with the discretion of the lower court and admit such evidence.

2. Discovery of new evidence- Clause (aa) of sub-rule (1) of Rule z inserted by the Amendment Act of 1976, empowers the appellate court to receive additional evidence at the appellate stage if the party seeking to produce additional evidence satisfies the court that, in spite of the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him when the decree was passed against him.

One of the basic principles for admission of additional evidence is that the person seeking admission of additional evidence should establish that in spite of due diligence such evidence could not be produced at the first instance. The provision, however, is not confined to cases where the parties have adduced some evidence in the lower court.

Even if he has not adduced any evidence before the trial court, additional evidence can be permitted by the appellate court if the conditions laid down in clause (aa) of Rule 27(1) of Order 41 are satisfied.

3. Requirement by the appellate court- The appellate court may itself require additional evidence for either of the two purposes:

1. To enable it to pronounce judgment or
2. For any other substantial cause.

The true test, therefore, is whether the appellate court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.

Similarly, the appellate court may admit additional evidence “for any sufficient cause“. An application of additional evidence must be disposed of before pronouncing judgment. The expression of any substantial cause should be liberally construed so as to advance substantial justice between the parties.

Thus, the additional evidence may be required to enable the court to pronounce judgment; or for any other substantial cause, but, in either case, it must be the court that requires it. A mere difficulty in coming to a decision is not sufficient for admission of evidence under Rule 27.

The words “for any other substantial cause” must be read with the word “requires” which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appeal late court requires additional evidence, that this rule will apply. The defect may be pointed out by a party, or that a party may move the court to supply the defect, but the requirement must be the requirement of the court upon its appreciation of the evidence as it stands,

The provisions of Rule 27 are not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and to fill in gaps. The expression “to enable it (appellate court) to pronounce judgment” means when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands. The ability to pronounce judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of the court delivering it.

Whenever the appellate court admits additional evidence, it should record reasons for doing it. The underlying object of this provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced. As observed by their Lordships of the Privy Council, “It is a salutary provision, which operates as a check against a too easy reception of evidence at a late stage of the litigation, and the statement of the reasons may inspire confidence and disarm objection.“

Again, where a further appeal lies from the decision of the appellate court, recording of reasons is necessary so as to enable the higher court to decide whether the discretion under the rule has been judicially exercised by the court below. The omission to record reasons, therefore, must be treated as a serious defect. The provision, however, is a directory and not mandatory, and failure to record reasons does not make the evidence inadmissible if the reception of such evidence is otherwise justified under the rule.

Rules 28 and 29 lay down the mode of taking additional evidence when the appellate court admits additional evidence in appeal. The appellate court may take the evidence itself or direct the lower court from whose decree the appeal is preferred or any other subordinate court to take it. Where the appellate court directs the lower court to record evidence, it should retain the appeal on its file and dispose it of on receipt of the additional evidence.

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