Law: Civil Procedure Code (V of 1908)

Section: 107(1)(d),107,96,O.XLI,R.27,27(1)(b)

(a) Civil Procedure Code (V of 1908)--- ----O.XLI, R.27---Appeal, pendency of---Additional evidence, production of---Scope---Party that had opportunity, but elected not to produce evidence, could not be allowed to give evidence that could have been given in court below---Illustration. Zar Wali Shah v. Yousaf Wali 1992 SCMR 1778 and Mst. Fazal Jan v. Roshan Din and others PLD 1992 SC 811 ref. State of U.P. v. Manbodhan Lal Srivastava AIR 1957 SC 912; Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and others PLD 2003 SC 849 and Mustafa Kamal and others v. Daud Khan and others 2009 SCMR 221 rel. (b) Civil Procedure Code (V of 1908)--- ----S.107(1)(d) & O.XLI, R.27---Additional evidence, production of---Powers of Appellate Court to take additional evidence---Scope---Party to appeal could not be allowed to produce additional evidence to patch up weaker parts of its case or fill up an omission---Appellate Court could ordinarily neither travel beyond record of Trial Court nor take evidence on appeal---Permission to produce additional evidence could not be claimed as of right by a party, rather Appellate Court in its discretion could permit so, subject to conditions/limitations laid down in O.XLI, R.27, C.P.C.---Principles. Section 107, C.P.C. enables Appellate Court to take additional evidence or to require such other evidence to be taken subject to conditions and limitations as prescribed under O.XLI, R. 27 C.P.C. Principle to be observed ordinarily is that the Appellate Court can neither travel outside the record of the Trial Court nor take evidence on appeal. However, S.107(d) C.P.C. is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the O. XLI, R. 27, C.P.C. are found to exist. The Court is not bound under the circumstances mentioned under the rule to permit additional evidence and 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. The Appellate Court may require any document to be produced or any witness to be examined to enable it…

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