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CPC O. 41
CPC O 41 R 27 - Additional Evidence
Incumbent upon Appellate court to decide the application for additional evidence while deciding the appeal. (2020-2)198 Punjab Law Reporter 265
Civil P.C. (5 of 1908), O.41 R.23A, O.41 R.27, O.41 R.28, O.41 R.29, O.41 R.25- Remand of case to trial court by High Court - Application for permission to adduce additional evidence - High Court has not recorded any special reasons as to why the parties should be relegated before the 'Trial Court' to re-decide the suit - The only reason, which, presumably, weighed with the High Court, is that it was necessary to find out the truth, as it is the duty of the Court - That could be done even by directing the First Appellate Court to record evidence, which it was competent to do while hearing the first appeal - High Court could have issued directions to the First Appellate Court to determine any question of fact including the existence and genuineness of the additional evidence or for that matter, whether the contents of the said documents had been duly proved by the party relying thereon - After recording the evidence in support of such relevant matters as the High Court may have directed, the First Appellate Court could proceed to try such issues and return the evidence to the High Court together with its findings thereon within the prescribed time - Such a course was permissible in terms of Rule 28 of Order XLI of CPC, and on receipt of the report, the High Court could then consider the substantial questions of law already framed while admitting the second appeal and finally decide the same on all issues - High Court shall frame points on which the additional evidence is allowed to be produced and direct the First Appellate Court to take the additional evidence on record in accordance with law and then return the evidence to the High Court together with its findings thereon and the reasons thereof, within the prescribed time. (2018)2 SCeJ 1631
CPC Order 41 Rule 27 – Additional evidence – Appellate court took into consideration the additional piece of evidence while deciding the appeals on merits without affording any opportunity to the appellant to file any rebuttal evidence to counter the additional evidence adduced - This caused prejudice to the appellants herein because they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced by the respondents for the first time in appeal against them – Additional evidence was not only taken on record but also relied on by the Appellate Court for allowing the appeals filed by the respondents which, in consequence, resulted in decreeing the civil suit - First Appellate Court committed jurisdictional error in allowing the appeals. (2018)2 SCeJ 1306
Civil Procedure Code, 1908, Order 41 Rule 27, Order 41 Rule 23A, 25 - Having allowed the application for leading additional evidence under Order 41 Rule 27 of the Civil Procedure Code, 1908 the first Appellate Court had two options - First it could have either set aside the entire judgment/decree of the Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and remanded the case to the Trial Court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or - Second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the Trial Court for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the Trial Court on such limited issues to enable the first Appellate Court to decide the appeals on merits - First Appellate court failed to take note of both the above mentioned provisions and proceeded to allow the appeal wrongly – We take recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the judgment and decree of the first Appellate Court to the extent it allows the respondents’ appeals on merit but at the same time uphold that part of the order which has allowed application for leading additional evidence filed by the plaintiffs for adducing additional evidence and remand the cases to the Trial Court for retrial.(2018)2 SCeJ 1306