Law: Code Of Civil Procedure, 1908.

Section: XLI Rule 27

REMARKS

Production of Additional Evidence at appellate stage interpretation of O. XLI R. 27 of CPC.
A bare reading of the aforesaid provision of law clearly gives it to understand that there are two eventualities when an application for production of additional evidence at appellate stage can be considered. One is where the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, which in this case is not attracted at all because admittedly petitioner has not submitted any such request or application before the trial court. The second eventuality which empowers the appellate court to consider and allow such application is that when the appellate court itself required certain documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause production of additional evidence becomes indispensable. As far as the case-law goes, in situation where application for production of additional evidence is filed by invoking the provisions of Rule 27(1)(b) of the CPC, in such case alone it has been authoritatively held that application for production of additional evidence is to be decided first before deciding the main appeal. Whereas, when the suo moto powers of the appellate court are sought to be pressed into service for allowing a party to produce additional evidence, the law as it has developed on the subject is that such like applications of litigating parties could not be decided in isolation unless arguments on main appeal are heard. Reliance in this regard is placed upon the judgment rendered by Lahore High Court in the case of ‘Said Rasool and 6 others vs. Abbas’ reported in 1985 CLC 1205. For the facility of reference, relevant citation of the aforesaid judgment is reproduced herein below;
“2. Learned counsel has contended that learned Additional District Judge has erred in the exercise of his jurisdiction in allowing the respondent\'s application by a separate order, without having heard the appeal at that stage. His argument is that it could only be upon hearing the appeal that he may have allowed the additional evidence to be taken. In the same strain he also submitted that, at any rate, the additional evidence did not deserve to be allowed because it tantamounted to allowing the respondents to fill in the lacunas of his evidence and patch up the weaknesses of his case. This contention is clearly misconceived in so far as the present case fell under clause (a) of sub-rule (1) of rule 27 of Order XLI of the C.P.C. and not under clause
(b) thereof which deals with the cases where the appellate Court may require the production of certain evidence to enable it to pronounce judgment and hence the appropriate order to allow its production could properly be passed only before the hearing of the appeal.”
Similar view was followed by Lahore High Court in another case tilted as ‘Nizam-ud-Din vs. Muhammad Ramzan and 2 others’ reported in 2005 MLD 1861 as well as this Court seized to decide the case of ‘Mst. Safia Begum vs. Allah Nawaz’ reported in 1990 CLC 1852.