LexMAHAVIR SINGH AND ORS. versus NARESH CHANDRA AND ANR.
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A MAHAVIR SINGH AND ORS. v. NARESH CHANDRA AND ANR. NOVEMBER 8, 2000 B [S. RAJENDRA BABU AND D.P. MOHAPATRA, JJ.] Code of Civil Procedure, 1908: Section 115-Sections 107, 151 read with Order XL/, rule 27-High C Court in revisiori petition allowing application to adduce additional evidence in proceedings before appellate court-Correctness of-Held, the High Court could not have interfered particularly when the whole appeal was not before it. D Respondent-plaintiffs filed suit before trial court for specific performance of agreement for sale, delivery of vacant possession and for declaration of suit-property. The respondents also filed an application to the Income Tax Department for obtaining clearance of the said property. The suit was dismissed by the trial court. In the course of the trial, the original agreement for sale was sent for scientific examination. Evidence of E interpolation in some pages of the agreement was found. An appeal was filed before the District Judge by the respondents. An application was also filed under Order XLI, Rule 27 of the Civil Procedure Code, 1908 read with Section 151 CPC to adduce additional evidence. The respondents prayed for direction from the appellate court for examination of the original agreement for sale F and the copy produced before the Income Tax Department by a Forensic Science Laboratory after verifying the requisite facilities available in the Laboratory. The appellate court dismissed the said application. The respondents filed a revision petition under section 115 of the CPC before th 0 High Court. The revision petition was allowed by the High Court. The High Court held that the latest facility was not available at the time when the parties G led evidence before the trial court and since the facility had become available subsequently, there was sufficient cause to permit the respondents to adduce additional evidence and allowed the said documents to be examined by a Forensic Science Laboratory. H In appeal to this Court, the appellants contended that the High Court 454 MAHAVIR SINGH v. NARESH CHANDRA 455 examined the matter as if it was an original proceeding without taking into A account the limited scope of Order XLI, Rule 27 read with section 107 of the CPC. Allowing the appeal, this Court HELD : 1. Section 107 CPC enables an appellate court to take additional B evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27 of the CPC. Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, section l07(d) CPC is an exception to the general rule and additional evidence can be taken only when the conditions and limitations laid C down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. f 458-H; 459-A-BI D 2. Order XLI, Rule 27 of the CPC envisages three situations when additional evidence can be adduced. In the present case, it is not the case of either party that the first situation is attracted. So far as the second situation, question of exercise of due diligence would not arise because the concerned scientific laboratory from which examination is sought to be made itself was E not in existence at the time of trial and so that clause is not attracted. In the third circumstance, the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject to several decisions wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna . F or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence. But a mere difficulty in coming to a decision is not sufficient for admission of G e
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