Code of Civil Procedure, 1908 (CPC)
Additional Evidence in Appeal: Order XLI Rule 27
An appeal is a rehearing on the record made at the trial, and the general rule in Order XLI Rule 27 of the Code of Civil Procedure, 1908 is emphatic: the parties shall not be entitled to produce additional evidence in the appellate court. Three exceptions follow, and they are narrow. Two of them, clauses (a) and (aa), look at why the evidence was not produced below; the third, clause (b), looks at what the court itself needs to pronounce judgment. These notes set out the rule and the discipline behind it.
The general prohibition, and the three exceptions to it
1. The Rule
§ Order XLI Rule 27 (in substance) (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if — (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) 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 (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. |
2. The Three Exceptions
Clause | Whose position it looks at | What must be shown |
|---|---|---|
(a) | The trial court's | That it REFUSED TO ADMIT evidence WHICH OUGHT TO HAVE BEEN ADMITTED. The fault lies with the court below, and the appeal is the place to repair it |
(aa) | The party's | That NOTWITHSTANDING THE EXERCISE OF DUE DILIGENCE the evidence was not within his knowledge, or could not be produced, when the decree was passed. The burden is on him, and it is a real one |
(b) | The appellate court's | That the COURT REQUIRES the document or witness TO ENABLE IT TO PRONOUNCE JUDGMENT, or for any other substantial cause |
§ Clause (aa) and clause (b) are often confused Clause (aa) is about the party. He says he could not produce the evidence earlier despite due diligence. If he could have produced it and did not, the clause does not help him, however useful the evidence now looks. Clause (b) is about the court. The requirement must be the court's own, arising because it finds itself unable to pronounce judgment on the material before it, and not because a party would be assisted by filling a gap in his case. The distinction has a practical consequence. A party cannot convert his own failure into the court's requirement by pointing out that the evidence would help the court decide. If that were enough, clause (aa) and its due-diligence standard would be meaningless. The words other substantial cause are read with the rest of clause (b), so the cause must be substantial and must relate to the court's ability to do justice on the appeal, not to the party's convenience. |
3. The Discipline of Sub-Rule (2)
§ Why recording reasons matters • It forces the court to identify the clause it is acting under. An order that simply allows the application, without saying whether it rests on (a), (aa) or (b), leaves the exercise unreviewable. • It makes the decision examinable in further appeal. Admitting additional evidence without recording reasons is itself an irregularity that a higher court can act upon. • It discourages routine admission. The requirement is a check on the temptation to take the documents on record and sort out their value later. |
4. Rules 28 and 29: What Follows
§ How the evidence is taken, and what it is confined to Rule 28: mode of taking additional evidence. Where additional evidence is allowed, the Appellate Court may either take such evidence itself, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take it and send it to the Appellate Court. Rule 29: points to be defined. Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified. The two rules together keep the exercise contained. The evidence is taken on defined points, and the appeal does not become a fresh trial. |
5. Practical Points
i. The application is ordinarily decided with the appeal, not before it, because whether the court requires the evidence under clause (b) can usually be judged only after the appeal has been heard.
ii. Admission is not the end of the matter. Evidence taken under the rule still has to be weighed, and the other side must have the opportunity to meet it.
iii. The rule applies to second appeals through Order XLII Rule 1, but is rarely invoked there, since a second appeal lies only on a substantial question of law.
iv. It is not a route around Order XLI Rule 23A. Where a retrial is genuinely necessary the answer is a remand, not the piecemeal admission of evidence on appeal.
v. Section 107(1)(d) is the enabling provision: an appellate court has power to take additional evidence or to require it to be taken, and Rule 27 states the conditions on which that power is exercised.
6. Landmark Points
- Rule 27(1). The parties shall not be entitled to produce additional evidence in the appellate court; the three clauses are exceptions to a prohibition.
- Clause (a). Where the trial court refused to admit evidence which ought to have been admitted.
- Clause (aa). Where the party establishes that despite due diligence the evidence was not within his knowledge or could not be produced when the decree was passed.
- Clause (b). Where the appellate court requires it to enable it to pronounce judgment, or for any other substantial cause.
- Rule 27(2). The court shall record the reason for admitting additional evidence.
- Rule 28. The evidence may be taken by the appellate court itself or by a subordinate court under its direction.
- Rule 29. The court shall specify and record the points to which the evidence is to be confined.
- Section 107(1)(d) confers the power; Rule 27 states the conditions.
7. Frequently Asked Questions
Can a party produce fresh evidence in appeal?
Not as of right. Order XLI Rule 27(1) provides that the parties shall not be entitled to produce additional evidence in the appellate court, and evidence may be allowed only under one of the three clauses that follow.
What is the due diligence requirement?
Under clause (aa), the party must establish that notwithstanding the exercise of due diligence the evidence was not within his knowledge, or could not be produced by him, at the time when the decree appealed against was passed. The burden is on him.
When does clause (b) apply?
Where the appellate court itself requires a document to be produced or a witness examined to enable it to pronounce judgment, or for any other substantial cause. The requirement must be the court's, not the party's.
Must the court give reasons?
Yes. Sub-rule (2) requires the court to record the reason for the admission of additional evidence, which identifies the clause relied on and makes the exercise reviewable in further appeal.
Who takes the additional evidence?
Under Rule 28, the appellate court may take it itself, or direct the court from whose decree the appeal is preferred, or any other subordinate court, to take it and send it to the appellate court.
Can the evidence be on any point?
No. Rule 29 requires the appellate court to specify the points to which the evidence is to be confined and to record those points on its proceedings, so the exercise does not become a fresh trial.
When is the application decided?
Ordinarily along with the appeal rather than at a separate earlier stage, because whether the court requires the evidence under clause (b) can usually be determined only after hearing the appeal on the existing record.
8. Related Topics in This CPC Series
- First Appeals: Sections 96 to 99A and Order XLI
- Powers of the Appellate Court: Order XLI Rule 33
- Remand and Reference Distinguished
- Second Appeals: Sections 100 to 103 and Order XLII