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ADDITIONAL EVIDENCE AT APPELLATE STAGE, ORDER 41- RULE 27, CAN APPELLATE COURT ACCEPT EVIDENCE ?
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DR. TUSHAR MANDLEKAR EXPLAINS IN EPISODE 40, HOW TO GET ADDITIONAL EVIDENCE AT APPELLATE STAGE UNDER ORDER 41 RULE 27 OF CPC 1908
Production of Additional Evidence in Appellate Court
( Order 41 Rule 27 ) ;
01. As a general rule, the Appellate Court should not admit
additional evidence for the purpose of the disposal of an appeal, and the parties are not entitled to produce additional evidence, whether oral or documentary in the appellate court. The Code, however under this rule empowers an appellate court to take additional evidence subject to certain conditions. The power is discretionary and must be exercised on sound judicial principles and in the interest of justice. Additional evidence does not mean evidence over and above the evidence led by the party in the lower court.
The basic principles for the admission of the additional evidence are;
(i) The party seeking the admission of additional evidence should be able to establish that such additional evidence could not have been adduced at the first instance with the best efforts;
(ii) The party affected by the admission of additional evidence should have an opportunity to rebut it;
(iii) The additional evidence must be relevant for the determination of the issue.
The following conditions have to be fulfilled.
(i) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(ii) The party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence , be produced by him at the time when the decree appealed against was passed; or
(iii) The appellate court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.
Substantial cause, what is ;
Substantial ' cause' must be analogous to or of same category as mentioned in clause (a)(b) and (c) of O.41 Rule 27(1).
When the parties agree at the appellate stage that additional evidence should be taken that element can be taken as constituting substantial cause for fresh evidence under O.41 Rule 27(1)(d).The fact that , if the opinion of the expert be taken and found in favour of the appellant it would dispel the disbelief of the trial court in the defence evidence cannot be regarded as 'substantial cause', nor can the non implementation of the order for expert opinion by the plaintiff in the court below be held to be substantial cause. Further, the fact that there is convincing and conclusive evidence to prove the matter in dispute may be a ground for review but certainly not for leading additional evidence under O.41 R 27 especially when the party who wants it has had ample opportunity and did not avail of the same in the belief that the evidence he proposed to lead would be sufficient.
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Production of Additional Evidence in Appellate Court
( Order 41 Rule 27 ) ;
01. As a general rule, the Appellate Court should not admit
additional evidence for the purpose of the disposal of an appeal, and the parties are not entitled to produce additional evidence, whether oral or documentary in the appellate court. The Code, however under this rule empowers an appellate court to take additional evidence subject to certain conditions. The power is discretionary and must be exercised on sound judicial principles and in the interest of justice. Additional evidence does not mean evidence over and above the evidence led by the party in the lower court.
The basic principles for the admission of the additional evidence are;
(i) The party seeking the admission of additional evidence should be able to establish that such additional evidence could not have been adduced at the first instance with the best efforts;
(ii) The party affected by the admission of additional evidence should have an opportunity to rebut it;
(iii) The additional evidence must be relevant for the determination of the issue.
The following conditions have to be fulfilled.
(i) The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(ii) The party seeking to produce additional evidence establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence , be produced by him at the time when the decree appealed against was passed; or
(iii) The appellate court required any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.
Substantial cause, what is ;
Substantial ' cause' must be analogous to or of same category as mentioned in clause (a)(b) and (c) of O.41 Rule 27(1).
When the parties agree at the appellate stage that additional evidence should be taken that element can be taken as constituting substantial cause for fresh evidence under O.41 Rule 27(1)(d).The fact that , if the opinion of the expert be taken and found in favour of the appellant it would dispel the disbelief of the trial court in the defence evidence cannot be regarded as 'substantial cause', nor can the non implementation of the order for expert opinion by the plaintiff in the court below be held to be substantial cause. Further, the fact that there is convincing and conclusive evidence to prove the matter in dispute may be a ground for review but certainly not for leading additional evidence under O.41 R 27 especially when the party who wants it has had ample opportunity and did not avail of the same in the belief that the evidence he proposed to lead would be sufficient.
PLEASE ALSO WATCH IMPORTANT VIDEOS
(1) HOW TO GET BAIL
(2) ANTICIPATORY BAIL
(3) REGULAR BAIL
(4) DEFAULT BAIL
(5) TOP FIVE ARGUMENTS OF BAIL
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