Holding

Additional evidence may be admitted under clause (aa) of Order 41 Rule 27 CPC when the documents sought differ materially from those on record and the ends of justice require it, even if the application fails to expressly state the requisite grounds.

Summary

Jayaramdas & Sons filed a suit for a permanent preventive injunction against Mirza Rafatullah Baig and others, which was dismissed by the trial court. The appellants sought to introduce additional certified copies of public records in the first appellate court under Order 41 Rule 27 of the CPC, but their application was rejected for not expressly stating the required grounds. The Supreme Court examined whether the documents, which differed materially from those already on record, could be admitted as additional evidence under clause (aa) of sub‑rule (1) of Rule 27, and whether procedural deficiencies in the application could be overlooked in the interest of justice. The Court held that the variance was material and that the ends of justice justified admitting the evidence despite the flawed application. Consequently, the appeal was allowed, the lower courts' judgments were set aside, and the first appellate court was directed to admit the two documents, levy costs, and rehear the appeal afresh.

Issues considered

Whether an application for admission of additional evidence under Order 41 Rule 27 CPC can be entertained when it does not expressly set out the grounds required by clause (a) or (aa) of sub‑rule (1).
Whether certified copies of public records that differ from copies already on record qualify as "additional evidence" under clause (aa) of sub‑rule (1) of Rule 27.
Whether the appellate court may admit such additional evidence de hors procedural deficiencies in the application, in the interest of justice.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 27 (sub‑rule (1) clauses (a), (aa), (b))

Subjects

additional evidenceOrder 41 Rule 27Civil Procedureinjunctionappellate jurisdictioncertified copiesmaterial variancejusticespecial leave petition

Judgment

A JAY A RAMDAS AND SONS
v.
MIRZA RAFATULLAH BAIG AND ORS.

MARCH 23, 2004

B [R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.]

Code of Civil Procedure, 1908; Order XL!, Rule 27, sub-rule (I), Clause ".
(aa):

c Suit for issuance ofpermanent preventive injunction-Dismissed by trial
Court-Affirmed by First Appellate Court rejecting the application for adducing
additional documents in evidence-Appeal dismissed by High Court-
Correctness of-Held: Contents of the documents sought to be added varies
with the contents of the copies of the documents on record-It would have
D material bearing on the issue to be determined-Hence, provisions under
Clause (aa) of sub-rule (l) of Rule 27 attracted-Though such ground should
have been set out in the petition/application itself to afford an opportunity to
opposite party-However, the ends of justice demand that the additional
evidence allowed to be produced de hors deficiency in the application-The
documents admilled in evidence-Appellate Court to decide the appeal afresh
E in accordance with law-Directions issued.

Plaintiff-appellant filed a suit for issuance of permanent preventive

F
injunction against the respondent-defendant. Trial Court dismissed the
suit. Pending appeal before the first Appellate Court, appellant filed an
application under Rule 27 of Order XLI CPC, to bring additional evidence
•
on record. Both the application and the appeal were rejected by the
Appellate Court. High Court rejected the appeal. Hence the present
appeal. During pendency of the appeal before this court, appellants
obtained the documents in question from the First Appellate Court and
thereafter placed it before this Court for consideration.
G
It was contended by the appellants that the additional documents
which were not allowed by the Courts 'Jclow may be admitted as an
additional evidence; that the case may be remanded to the First Appellate
Court; and that the contents of the documents available on record and
the contents of the documents sought to be produced on record were at
H 488
.IA YA RAMDAS & SONS v. RAIG 489

variance and thus have material bearing on the finding of facts to be A
arrived at.

Respondents submitted that the documents were already available
on record; and that it was obligatory on the part of the appellant to have
set out such grounds in the application itself to lay foundation for
applicability of Rule 27 Order XLI CPC. B
Allowing the appeal, the Court

·~ r HELD: I. I. It is true that additional evidence, whether oral or
documentary, is not to be admitted by Appellate Court unless a case for
admission thereof is made out by reference to clause (a) or (aa) of sub- C
rule (1) of Rule 27 or unless the Appellate Court requires such evidence
to enable it to pronounce judgment or for any other substantial cause
within the meaning of clause (b) of the Rule. A perusal of the documents
and their comparison with the documents already available on record
clearly goes to show that the two are at variance and the effect of such D
variance determined either way would have a material bearing on the
crucial issue arising for decision between the parties. 1492-C-Dl

1.2. It is only when it came to their knowledge that the certified
copies obtained from the public officer, having custody of the documents,
were not complete copies that they thought of securing another set of E
certified copies and then seeking leave of the Court, for producing them
as an additional evidence in Appellate Court. The case of the appellants
for production of additional evidence falls within clause (aa) of sub-rule
(1) of Rule 27. It would have been better if such ground was set out
specifically in the application so that the opposite party could have had
an opportunity of meeting the plea and the First Appellate Court could F
also have had the provisions of law in its mind for dealing with the
appellants' application. However, the ends o( justice demand the
additional evidence being allowed to be produced de hors the deficiency
in the application filed by the appellants. 1492-B, FI
G
1.3. The documents shall be admitted in evidence by the First
Appellate Court, subject to payment of Rs. 5000 by way of costs by the
appellants. [492-H; 493-AJ

The Court should proceed to hear and decide the appeal afresh and
in accordance with law. It is clarified that this Court has neither touched H
490 SUPREME COURT REPORTS (2004] 3 S.C.R.

A upon nor expressed any opinion on the merits of the case. 1493-AI
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 18I4 of2004.

From the Judgment and Order dated 22.8.2003 of the Andhra Pradesh
High Court in S.A. No. 619 of 200 I.
B
V.R. Reddy, P. Venkat Reddy, P. Keshav Rao and Guntur Prabhakar
for the Appellants.

Kapil Sibal, G. Rama Krishna Prasad, K.C. Mittal, Dharmesh and Mohd. ... .
Wasay Khan for the Respondent No. I
c Ranjeet Kumar and John Mathew for the Respondent Nos. 2-4.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Leave granted.
D A suit for issuance of permanent preventive injunction was filed by the
plaintiff-appellants against the defendant-respondents. The suit was dismissed
by the trial court. The decree has been maintained by the First Appellate
Court as also by the High Court. Feeling aggrieved, the Plaintiff-appellants
.....
'
,_

have filed this appeal by special leave.
E
The only submission made by Shri V.R. Reddy, the learned senior
counsel for the appellants, is that the First Appellate Court has committed a
grave error of law in rejecting the application filed by the appellants under
Rule 27 of Order XU of the Code of Civil Procedure, 1908. It is submitted
..
that if only the application would have been allowed, the additional evidence
F sought to be brought on record by the appellants would have made a material
difference in the findings arrived at by the First Appellate Court and the ~

rejection of. the application has occasioned a failure of justice.

Before the First Appellate Court, the appellants sought to tender in
evidence three documents which are certified copies of public records. The
G application was rejected by the Appellate Court forming an opinion that the
application was a bald application not setting out any facts relevant to the
exercise of jurisdiction by the Appellate Court by reference to any of the
clauses (a), (aa) and (b) of sub-rule (I) of Rule 27 of Order XLI. The prayer ..,,
was reiterated by the appellants in the High Court but it met with the ~ame
H fate and for the same reasons.
.IAY ARAMDAS & SONS v. BAIG ILAHOTI. L] 491

Shri V.R. Reddy, the learned senior counsel for the appellants, has A
pressed for the admission of the same documents in additional evidence and
for the consequent remand to the First Appellate Court The prayer has been
vehemently opposed on behalf of the respondents by their learned counsel,
led by Shri Kapil Sibal, Senior Advocate. At one stage it was submitted on
behalf of the respondents that the exercise sought to be indulged into by the B
appellants, would be one in futility inasmuch as the documents which the
appellants are proposing to tender in evidence are already available on record.
In view of this submission, an adjournment was sought for on behalf of the
·,. :r appellants. It appears that during the pendency of this special leave petition
and between the two dates of hearing, the appellants moved the First Appellate
Court seeking return of the documents which were filed by them in the First C
Appellate Court as accompanying the application under Order XL!, Rule 27
ofCPC. The First Appellate Court returned the documents on 10.02.2004 and
thereafter these documents have been brought to the notice of this Court by
placing the same at the hearing. Shri Reddy, the learned senior counsel, has
been at pains to demonstrate that the documents already available on record
appear to be the similar certified copies but a minute comparative study of D
the documents reveals that the contents of the documents which the appellants
were seeking to be brought on record were at variance with the documents
available on record and, therefore, the admission of these documents in
additional evidence was all the more necessary inasmuch as the Court shall
have to hold which of the two documents carried reliability and that would E
obviously have a material bearing on the findings of fact to be arrived at.

Shri Kapil Sibal, the learned senior counsel for the respondents, has
vehemently urged that Order XL!, Rule 27 of the CPC was an exception to
the ordinary rule of admitting evidence in civil cases. Inasmuch as the exercise
of discretion under Order XL!, Rule 27 of the CPC in favour of the party F
• <llr' seeking such exercise, has the result of almost re-opening the trial which has
otherwise stood concluded, care and caution is needed for exercise of such
discretion and the power cannot be exercised just for asking. It was obligatory
on the part of the appellants to have set out in the application such necessary
facts as would lay foundation for the applicability of one of the grounds G
contemplated by the provision, failing which no fault can be found with the
discretion exercised by the First Appellate Court and upheld by the High
Court, submitted Shri Kapil Sibal, the learned senior counsel for the
'"9 respondents.

On 19.03.2004, at the time of hearing, the learned counsel for the H
492 SUPREME COURT REPORTS [2004] 3 S.C.R.

A appellants. produced for the perusal of the Court two out of three documents
which were sought to be tendered in evidence before the First Appellate
Court and the return whereof was secured by the appellants on I0.02.2004.
Shri Reddy submitted that the appellants are limiting their prayer to the
admission of these two documents in evidence and would not press for the
third one. The two documents have been placed in a closed cover after
B perusal by the Court.

It is true that additional evidence, whether oral or documentary, is not
to be admitted in Appellate Court unless a case for admission thereof is made
..,. -
out by reference to clause (a) or (aa) of sub-rule (l) of Rule 27 or unless the
c Appellate Court requires such evidence to enable it to pronounce judgment
or for any other substantial cause within the meaning of clause (b). A perusal
of the documents, brought to our notice by the learned counsel for the
appellants and their comparison with the documents already available on
record, clearly goes to show that the two are at variance and the effect of
such variance determined either way would have a material bearing on the
D crucial issue arising for decision between the parties.

As already pointed out both the sets of documents are certified copies
of public documents. The appellants would not ordinarily suspect or doubt "'\ ,
the documents where the certified copies of public documents were secured
from the public officer having the custody of such public documents. It is
E only when it came to their knowledge that the certified copies were at variance
with the originals or were not complete copies that they thought of securing
another set of certified copies and then seeking leave of the Court for producing
the certified copies obtained by them as an additional evidence in Appellate
Court. The case of tht appellants for production of additional evidence falls
F within clause (aa) of sub-rule (!), abovesaid. It would have been better if
such ground was set out specifically in the application so that the opposite
~
party could have had an opportunity of meeting the plea and the First Appellate
Court could also have had the provisions of clause (aa) of sub-rule (I) in its
mind for dealing with the appellants' application. However, still we feel that
the ends of justice demand the additional evidence being allowed to be
G produced de hors the deficiency in the application filed by the appellants.

The appeal is allowed. The Judgments and decrees passed by the High
Court and the First Appellate Court are set aside. The two documents, filed
by the appellants in this Court, shall be forwarded by !he Registrar (Judicial)
H of this Court to the First Appellate Court in a sealed cover. The documents
JAYARAMDAS & SONS v. BAIG [LAHOTI. J] 493
shall be admitted in evidence by the First Appellate Court, subject to payment A
of Rs. 5000 by way of costs by the appellants. The First Appellate Court
shall, after permitting the production of such two documents by w<iy of
additional evidence, proceed to hear and decide the appeal afresh and in
accordance with law.

Before parting we make it clear that we have neither touched upon nor B
expressed any opinion on the merits of the case. Only production of additional
evidence has been permitted. The First Appellate Court shall be free to form
' T its own opinion afresh on all the questions or'facts and law arising for
decision in the appeal.

The parties, through their respective counsel, are directed to appear C
before the First Appellate Court on 19.04.2004.

S.K.S. Appeal allowed.