Holding

The High Court erred in applying Order 41 Rule 27; the application for additional evidence must be dealt with under the appropriate clause, and the order allowing it without notice is set aside.

Summary

The respondent firm sued the appellant for recovery of a dishonoured cheque issued after the appellant retired from a partnership. The trial court dismissed the suit without specifically addressing the appellant's claim of fraud and forgery. On appeal, the respondent filed an application under Order 41 Rule 27 of the CPC to adduce additional evidence, but the High Court entertained the application without issuing notice to the appellant and based its decision on clause (b) of the rule. The Supreme Court held that the High Court misapplied the provisions, as clause (aa) and clause (b) have different conditions precedent, and the appellate court must first determine which clause applies before admitting fresh evidence. Consequently, the Supreme Court set aside the High Court order and directed the parties to exchange affidavits under the correct procedure, effectively allowing the appeal.

Issues considered

Whether the High Court correctly applied Order 41 Rule 27 of the CPC in allowing the application for additional evidence without notice.
Whether clause (aa) or clause (b) of sub‑rule (1) of Rule 27 is applicable to the present case.
Whether an appellate court may admit fresh evidence without satisfying the conditions precedent under the CPC.

Legislation cited

Code of Civil Procedure, 1908s. Order 41 Rule 27

Subjects

Order 41 Rule 27additional evidenceappellate jurisdictioncivil procedurepartnershipcheque dishonourfraudforgerynotice

Judgment

A K.R. MOHAN REDDY
v.
MIS NET WORK INC. REP. TR. M.D.

SEPTEMBER 26, 2007 .
B
[S.B. SINHA AND H.S. BEDI, JJ.]

Code ofCivil Procedure, J908:

C Or. 41, rr. 27(1)(aa) and (b)-Applicaiionfor adducing additional
evidence at appellate stage-No notice issued to opposite party-
Application taken up by High Court at the time of hearing of the
appeal-High Court holding that the "application should be allowed,
the same being a requirement of court and/or was otherwise for
D substantial cause "-HELD: High Court failed to apply provisions of
Or. 41, r.27 in its correct perspective-It proceeded on the basis as if
clause (b) of r.27(1) was applicable-Condition precedent for
application ofclause (aa) ofsub-rule (1) ofr.27 is d~fferentfrom that
ofclause (b)-Judgment ofHigh Court set aside-Application would
E be disposed ofin accordance with law after parties exchange affidavits
as directed in the judgment.

The respondent firm filed a suit against the appellant for
recovery of certain amount. The case of the plaintiff-respondent was
that the parties entered into a partnership. The said partnership was
F reconstituted, and thereupon the defendant appellant handed over
certain works to the respondent firm for execution. Though the
appellant had retired as a partner from the said firm, he requested
the respondent firm to continue the work allotted in his name. The
work was executed by the respondent firm and the appellant issued
G a cheque in favour of the respondent firm, but the same was
dishonoured. The plea of the defendant-appellant was that he had
already retired from the firm; all the accounts between the parties
had been comprehensively settled and the cheque was obtained by
fraud and forgery. The trial court without framing a specific issue
H 872
K.R. MOHAN REDDY v. M/SNETWORKINC.REP. TR.MD. 873

-"-("
whether the cheque was an outcome offraud and forgery, dismissed A
the suit. In the appeal the plaintiff-respondent firm filed an
application under Order 41 Rule 27 for adducing additional evidence.
The appellate court issued no notice to the said application which
came to be considered along with the hearing of the appeal itself.
The appellate court, ultimately held by the impugned judgment that B
the application for adducing additional evidence filed by the plaintiff
should be allowed, the same being a requirement of the Court and/
or was otherwise for substantial cause.
In the instant appeal filed by the defendant it was contended
that the application of the plaintiff-respondent was based on clause
c
(aa) of Rule 27(1) of Order 41 and the High Court committed an error
in relying upon clause {b) of Rule 27(1); and that the High Court,
prior to passing of the order, did not give any opportunity to the
appellant to file an objection.with regard to maintainability of the
said application. D
)-

~
Disposing of the appeal, the Court
HELD: 1. The High Court failed to apply the provisions of Order
41Rule27 CPC in its correct perspective. It proceeded on the basis
as if clause (b) of Sub-rule (1) of Rule 27 of Order 41 ofCPC was E
applicable. Power of the appellate court to pass any order thereunder
is limited. It is now a trite law that the condition precedent for
application of clause (aa) of Sub-rule (1) of Rule 27 of Order 41 is
\;·

. " different from that of clause (b). In the event the former is to be
applied, it would be for the applicant to show that the ingredients or F
conditions precedent mentioned therein are satisfied. On the other
hand, if clause (b) to Sub-rule (1) of Rule 27 of Order 41 CPC is to
be taken recourse to, the appellate Court was bound to consider the
entire evidences on record and come to an independent finding for
f· arriving at a just decision that adduction of additional evidence as G
has been prayed by the appellant was necessary. The fact that the
High Court failed to do so, amounts to misdirection in law.
[Paras 15, 17, 18 and 19) [877-E, H, F; 878-A-D)
State ofGujaratv. Mhendrakwnar Parshottambhai Desai (dead)
H
-~~
874 SUPREME COURT REPORTS [2007] 10 S.C.R. ·

A by LRs. (2006] 9 SCC 772, relied on.
1.2. An appellate court should not pass an order so as to patch
up the weakness of the evidence of the unsuccessful party before
the trial court, but it will be different if the Court itselfreqtiires the
evidence to do justice between the parties. The ability to pronounce
B judgment is to be understood as the ability to pronounce judgment
satisfactorily to the mind of the Court. But mere difficulty is not
sufficient to issue such direction. While saying so, however, it is not
meant that the Court at an appropriate stage would be precluded 't
from considering the applicability of clause (b).
C [Para 21] [878-H; 879-A-BJ
1.3. The impugned judgment cannot be sustained. It is set aside
accordingly. The respondent may file additional affidavit in support
of its application under Order 41 Rule 27 CPC, and thereafter, the
D appellant may file his response both to the original application as
also the additional affidavit, if any. [Para 22] (879-C] -I

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4588 of
2007.
E From the.Judgment and final Order dated 20.09.2006 of the High
Com1 of Judicature, Andhra Pradesh at Hyderabad in CCCA M.P. No.
239 of 2006 & CCCA No. 253 of 2004.
Rakesh Dewedi, Almam D.N .Rao and Rita Gupta for the Appellant.
F Udai U. Lalit, P.S. Narsimha, Somiran Shanna, L. Rashmani
Mandakini and Aribam Guneshwar Sharma for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. Leave granted.
G ( 1) This appeal is directed against the judgment and order dated
20/9/2006 passed by a Division Bench of the Andhra Pradesh High Court
in C.C.C.A.No.253/2004 and the application for adduction of additional
evidence marked as City Civil Court Appeal Misc. Petition No. 239 of
2006, whereby and wherem1der the application filed by the respondent
H
K.R.MOHANREDDY v. M/SNETWORKINC.REP. TR. 875
M.D. [SINHA,J.]
herein, purported to be under Order 41 Rule 27 of the Code of Civil A
Procedure was allowed.
(2) The parties entered into a partnership. The said partnership was
reconstituted on 1.7.1994. Plaintiff-respondent contended that pursuant
to the reconstituted partnership deed, the appellant had handed over B
certain works to the respondent-finn for its execution. It is also not in
dispute that the appellant herein retired as a partner from the said Finn.
However, it has been contended that despite his retirement, the appellant
had requested the respondent to continue the work allotted in his name
so as to protect his turnover and continuation of his registration as a special
class contractor. Further, the case of the respondent was that the appellant C
was to hand over the payment which he is supposed to receive in lieu of
the Khammam Project. i\ccording to it upon settlement of accounts of
Khammam Project, an amount of Rs. 34,82,000/- was found due and
payable by the appellant to the respondent Finn.
D
(3) The contention of the respondent, on the other hand, is that in
respect of construction of Minister's quarter at Hyderabad, the appellant
had paid. Rs. 8,00,000/- and Rs. 5,25,316/-. It claimed that a sum of
Rs. 8,03,350/- was owing to it by the appellant in respect of the
Vijayawada work. E
(4) According to the respondent, the appellant issued a cheque of
Rs. 34,82,000/- in favour of the Finn in respect ofKhammam Project
along with a covering letter wherein the appellant assured the respondent
that he would settle the accounts pertaining to the other two projects after
finalizing the accounts with the department. The said cheque was F
dishonoured.
(5) On the aforementioned premise, on or about 21.1.2002 a suit
for recovery of Rs. 50,74,109/- along with the interest@24% per annum
was filed by the respondent herein.
-(- G
(6) Appellant in his written statement, while denying and disputing
the aforementioned contentions of the plaintiff-respondent, inter-alia,
asserted that the cheque had been obtained by it by fraud, forgery and
with the- connivance of one Shri K. Ramesh Reddy and Mr.
Y.S.Subramaniam, Managing Partner of the Respondent. It was also H
876 ·SUPREME COURT REPORTS [2007] 10 S.C.R.

A asserted by the appellant that he had retired from the partnership on
12.1.2000 and all the accounts between the parties were comprehensively
settled which was also recorded in the deed of retirement.
(7) The trial Court framed a general issue as to whether the plaintiffs
B are entitled to any relief and did not frame a specific issue with regard to
the case of the appellant herein that the said cheque was an outcome of
fraud and forgery. The learned trial Judge, however, dismissed the suit
holding as under:
"(i) Defendant admits assignment ofKhammam & Vijayawada
c Projects to the petitioner.
(ii) Clause 8 of the retirement deed does not mention about pending
work with the respondent and future dues payable.
(iii) Plaintiff did not file its accounts to prove. that the plaintiff has
D executed the entire work at Khammam Hospital.
(iv) Pending disposal of the suit filed by the defondant against the
plaintiff for recovery of the amounts paid to the plaintiff after.
retirement (7.62000 & 13.7.2000) on the ground that the same
was by way ofloan, it is difficult to take a view that the defendant
E has paid any money after his retirement towards the dues payable
under the aforesaid tnmsaction.
(v) There is a possibility that the cheque was dishonestly obtained..''
(8) Respondent preferred an appeal thereagainst. Indisputably, an /-1
F application tinder Order XLI Rule 27 of Code of Civil Procedure was
filed on 22.3.2006.
(9) It, however, appears that no notice was issued in relation thereto.
The said application purported to have come up for consideration along
G with the hearing of the appeal.
( 10) With the consent of the parties, the main appeal itself was to
be heard.
( 11) By reason of the impugned judgment, although, the High Court
H noticed the findings of the learned trial Judge and various decisions
K.R. MOHAN REDDY v. MIS NET WORK INC. REP. TR. 877
M.D. [SJNHA,J.]
operating in the field, inter alia, held that the application for adduction A
of additional evidence filed by the respondent herein should be allowed,
the same being a requirement of Court and/or was otherwise for
substantial cause.
(12) Mr.Rakesh Dwivedi, learned senior counsel appearing on B
behalf of the appellant, inter alia, would submit that the High Court
prior to passing of the said order did not give an opportunity to the
appellant to file an objection in regard to the maintainability of the said
r' application.
(13) In any event, the learned counsel would contend that the C
respondent's application being based on clause (aa) of Sub-rule (I) of
Rule 27 of order XLI of C.P.C., the High Court committed a serious
error in relying upon Clause (b) thereof.
(14) Mr. Uday Umesh Lal it, learned senior counsel appearing on
behalf of the respondent, on the other hand, would submit that if the D
case of the respondent as set out in his plaint vis-a-vis the findings of
learned trial Judge are to be considered in their entirety, the High Court
was correct in its view.
(15) The High Court, in our opinion, failed to apply the provisions E ,
of Order 41 Rule 27 of CPC in its correct perspective. Clauses (a),
(aa) and (b) of Sub- rule (1) of Rule 27 of Order XLJ refer to three
different situations. Power of the appellate court to pass any order
.>'-, thereunder is limited. For exercising its jurisdiction therew1der, the
appellate Court must arrive at a finding that one or the other conditions F
enun1erated thereunder is satisfied. A good reason must also be shown
as to why the evidence was not produced in the trial Court.
( 16) Respondent in its application categorically stated that the
books of accounts had been misplaced and the same were discovered
1-- a few days prior to the filing of the said application while the office G
was being shifted.
( 17) The High Court, unfortunately did not enter into the said
questions at all. As indicated hereinbefore, the High Court proceeded
on the basis as if clause(b) of Sub-rule (1) of Rule 27 of Order XLI H
878 SUPREME COURT REPORTS [2007] 10 S.C.R.

A of CPCwas applicable.
(18) It is now a trite law that the conditions precedent for application
of clause (aa) of Sub-rule (1) of Rule 27 of Order XLI is different from
that of clause (b ). In the event the former is to be applied, it would be for
B the applicant to show that the ingredients or conditions precedent
mentioned therein are satisfied. On the other hand clause(b) to Sub-rule
(I) of Rule 27 of Order XLI of CPC is to be taken recourse to, the
appellate Court was bound to consider the entire evidences on record
and come to an independent finding for arriving at a just decision;
adduction of additional evidence as has been prayed by the appellant was
C necessary.

(19) The fact that the High Court failed to do so, in our opinion,
amounts to n:iisdirection in law. Furthem1ore, if the High Court is correct
in its view that the plaintiff-respondent had proceeded on the basis that
D the suit in its entirely based on a cheque, wherefor, it was not necessary
for it to file the books of accounts before the trial Court finding contrary
thereto could not have been arrived at that the same was in fact required
to be proved ·so as to enable the appellate Com1 to arrive at a just
conclusion.
E (20) The Supreme Court in State of Gujarat v. Mhendrakumar
Parshottambhai Desai(dead) by L.Rs. [2006] 9 SCC 772 relying upon
Afunicipal Corporation of'Greater Bombay v. Lal Pancham and Ors.,
held as under:
"Though the appellate Com1 has the power to allow a document
F
to be produced and a witness to be examined under Order XLI
Rule 27 CPC, the requirement of th.e said Court must be limited
to those cases where it found it necessary to obtain such evidence
for enablffig it to pronow.1ce judgment. 111is provision did not entitle
the appellate court to let in fresh evidence at the appellate stage
G
where even without such evidence it can pronounce judgment in
the case. It does not entitle the appellate court to let in fresh
evidence only for purposes of pronouncement of judgment in a
particular way."

H (21) Appellate Court should not pass an order so as to patch up
K.R.MOHANREDDY v. M/SNETWORKINC.REP. TR. 879
M.D. (SINHA,J.]
the weakness of the evidence of the unsuccessful party before the trial A
Court, but it will be different if the Court itself require the evidence to do
justice between the parties. The ability to pronounce judgment is to be
understood as the ability to pronounce judgment satisfactorily to the mind
of the Court. But mere difficulty is not sufficient to issue such direction.
While saying so, however, we do not mean that the Court at an appropriate B
stage would be precluded from considering the applicability of clause (b).
(22) We are, therefore, of the opinion that the impugned judgment
cannot be sustained. It is set aside accordingly. The respondent may file
additional affidavit in support of its application under Order XLI Rule 27
CPC within two weeks from the date of receipt of copy of this order. C
The appellant may file his response both to the Original Application as
also the additional affidavit, if any, within four weeks thereafter.
(23) We would request the High Court to consider the entire matter
in accordance with law afresh on merits. D
(24) The appeal is disposed of with the aforementioned observations.
""
"RP. Appeal disposed of