Appellate Courts Must First Examine Pleadings Before Allowing Additional Evidence Under O 41 Rule 27 of CPC

1. The short issue involved in this Civil Appeal is whether it

is necessary for the Appellate Court to consider the

pleadings of the parties before adjudicating the prayer

made for leading additional evidence under the provisions

of Order XLI Rule 27(1) of the Code of Civil Procedure,

1908?

2. The appellants are the unsuccessful plaintiffs, who are

aggrieved by the reversal of the decree for specific

performance of agreement dated 20.02.1995, that was

Civil Appeal No.10458 of 2010 Page 2 of 14

granted by the Trial Court. The Appellate Court has

reversed the said decree after taking into consideration the

additional evidence led by the respondent – defendant.

2.1 It is the case of the appellants – plaintiffs that on

20.02.1995, the respondent – defendant entered into an

agreement to sell his house property for a consideration of

₹10,67,000. An amount of ₹2,50,000 was paid on the date

of the agreement, while further amount of ₹2,50,000 was

paid on 30.03.1995. The agreement was to be completed

within a period of one and a half years. As per the said

agreement, if the defendant was not in a position to deliver

vacant possession, the consideration payable was to be

₹8,67,000.

2.2 The plaintiffs on 18.04.1996 issued a notice to the

defendant calling upon him to execute the sale deed.

There was no response to this notice. Thereafter on

11.07.1996, a telegraphic notice was issued by the

plaintiffs. The plaintiffs thereafter on 19.07.1996 filed the

suit for specific performance of the agreement dated

20.02.1995.

2.3 In the plaint, it was pleaded by the plaintiffs that they had

disposed of other immovable properties for purchasing the

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suit property, which they intended to use for their

occupation. It was further pleaded that the plaintiffs were

always ready and willing to perform their part of the

agreement and that the balance consideration was

available with them.

2.4 In the written statement filed by the defendant, the case

set up by the plaintiffs was denied. According to the

defendant, he had borrowed an amount of ₹1,00,000 for

expansion of his business from the plaintiff No.1 and that

on 18.02.1995, his signatures were obtained on blank

stamp papers. While he admitted his signatures at two

places on the stamp papers, he denied the other

signatures. As regards the plaintiffs’ case that they had

sold their immovable properties for purchasing the suit

property, the defendant stated that it was not within his

knowledge that the plaintiffs had done so.

2.5 The plaintiff No.1 examined himself and two other

witnesses. The defendant examined himself before the

Trial Court. On consideration of the aforesaid evidence,

the Trial Court held that the plaintiffs had proved that an

agreement to sell dated 20.02.1995 was entered into by

the defendant. It was further held that the plaintiffs had

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proved their readiness and willingness. The Trial Court

exercised discretion in favour of the plaintiffs and after

disbelieving the evidence led by the defendant, decreed

the suit for specific performance on 19.02.2000.

2.6 The defendant being aggrieved by the aforesaid decree

challenged the same by filing an appeal under Section 96

of the Code of Civil Procedure, 1908 (for short “the Code”),

During pendency of the appeal, an application under

provisions of Order XLI Rule 27(1) of the Code was filed

by the defendant. He sought to produce additional

documentary evidence in support of the appeal. The

documents intended to be produced were:-

“1. Certified copy of extract of the house tax

demand register pertaining to House Property

bearing No.13, Old. No. 29/30, E No. 6th Street,

HKB Road, Bangalore 550 001.

2. Certified copy of the Encumbrance

Certificate pertaining to House Property

bearing No.13, Old No.29/30, E No. 5th Street,

HKB Road, Bangalore 550 001.

3. Certified copy of the sale deed dated 22nd

day of October 1948. E No. 5th Street, HKB

Road, Bangalore 550 001.

4. Certified copy of the City Survey

Endorsement.”

2.7 The application was opposed by the plaintiffs. The Division

Bench of the High Court while considering the appeal

proceeded to hold that in view of the pleadings in

paragraph 9 of the plaint, wherein the plaintiffs had stated

that they had sold the immovable properties for purchasing

the suit property and that the defendant had subsequently

got information that no such sale had taken place, it was

necessary to permit additional evidence to be led. After

considering the same, the High Court was of the view that

the agreement dated 20.02.1995 was not proved and that

the case set up by the plaintiffs was not true. On that basis,

the High Court reversed the decree for specific

performance and directed the defendant to return the

amount of ₹1,00,000 borrowed by him from the plaintiff

No.1.

3. Mr. Raghavendra Srivatsa, learned Senior Advocate for

the appellants – plaintiffs submitted that the High Court was

not justified in reversing the decree passed by the Trial

Court. The plaintiffs had pleaded and proved their

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readiness and willingness to perform their part of the

contract in accordance with the agreement dated

20.02.1995. The Trial Court after examining entire

evidence on record, rightly held that the agreement dated

20.02.1995 had been duly proved and that the High Court

erred in reversing this finding. The defendant having

admitted his signatures on the said agreement, it was not

permissible for the High Court to have compared the

signatures and thereafter take a different view from the

one taken by the Trial Court. The additional evidence

sought to be led by the defendant was accepted without

granting any opportunity to the plaintiffs to counter the

same. It was further submitted that there was considerable

delay on the part of the High Court in delivering the

impugned judgment, after the parties were heard and the

judgment was reserved. Reliance in this regard was

placed on the decisions in Anil Rai Vs. State of Bihar,

(2001) 7 SCC 318 and Ratilal Jhaverbhai Parmar and

Others Vs. State of Gujarat and Others, 2024 INSC 801.

It was thus submitted that the Appellate Court had erred in

reversing the well-reasoned judgment of the Trial Court.

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4. Per contra, Ms. Mahalakshmi Pavani, learned Senior

Advocate for the respondent – defendant supported the

impugned judgment. According to her, the High Court was

justified in reversing the finding that the agreement dated

20.02.1995 had been proved. It was clear from the

deposition of the defendant, who had accepted his

signatures at three places but had denied the other

signatures on the document dated 20.02.1995. The High

Court was justified in undertaking the exercise of

comparing the signatures in exercise of the power

conferred by Section 73 of the Indian Evidence Act, 1872

(for short “the Act of 1872”). Since it came to the

knowledge of the defendant that the plaintiffs had not sold

any immovable property as pleaded by them, the

application seeking permission to lead additional evidence

under provisions of Order XLI Rule 27 of the Code had

been moved by the defendant. The same was rightly

allowed by the High Court and after considering the public

documents obtained from the State authorities, the same

were taken into consideration. Since the High Court had

considered the entire evidence in the proper perspective,

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there was no reason to interfere with the impugned

judgment. It was, thus, urged that the appeal was liable to

be dismissed.

5. Having heard the learned Senior Advocates for the parties

and having perused the documentary evidence on record,

it would be first necessary to consider whether the High

Court was justified in permitting the defendant to lead

additional evidence in the appeal as this is the principal

reason that the decree passed by the Trial Court has been

reversed by the High Court in view of the additional

evidence brought on record by the defendant.

5.1 In paragraph 9 of the plaint, it was specifically pleaded by

the plaintiffs that they had disposed of their valuable

immovable properties in order to purchase the suit

property, which they required for their bona fide use and

occupation. In the written statement, the defendant in

paragraph 11 stated that as regards the averments

contained in paragraph 9 of the plaint, it was not within the

knowledge of the defendant that the plaintiffs had sold their

valuable immovable properties so as to invest the return of

the same in purchasing the suit property.

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5.2 The plaintiff No.1 in his deposition stated that since he

wanted to purchase the suit property for his residence and

he did not own any property in Bengaluru, he had sold a

house one month prior to the date of the agreement of sale

so as to make the payment to the defendant. In his crossexamination,

he stated that about two months prior to

20.02.1995, he was authorised by the plaintiff No.2 to sell

his property located at Benson Town. Some portion of that

property was accordingly sold to Mr. R. Maqbool for ₹7

lakhs while the remaining portion was sold to Mr. Gulzar

Ahamed for ₹2.5 lakhs. He further stated about the manner

in which the proceeds from the sale were invested.

5.3 The Trial Court on the basis of the evidence of the plaintiff

No.1 and other witnesses, as well as the evidence of the

defendant, accepted the case of the plaintiffs and granted

a decree for specific performance.

5.4 In the grounds raised by the defendant in the appeal filed

before the High Court, a challenge was raised to the

document dated 20.02.1995, by stating that it was not an

agreement of sale, but that the said document had been

executed by way of security since the defendant had

obtained a loan of ₹1,00,000 from the plaintiff No.1.

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5.5 As stated above, during pendency of the appeal before the

High Court, the defendant filed the application under the

provisions of Order XLI Rule 27(1) of the Code. The High

Court was of the view that in the light of the pleadings in

paragraph 9 of the plaint as well as the evidence of the

plaintiff No.1, the documents in the form of extracts of the

house tax demand register, encumbrance certificate,

certified copy of the sale deed and certified copy of the City

Survey Endorsement were material documents that were

required to be taken into consideration as additional

evidence. It was further stated that being public

documents, the same ought to be accepted under Section

74 of the Act of 1872, being maintained by the authorities

in discharge of their duties in normal course. For these

reasons, the High Court was of the view that it was not

necessary to remand the proceedings to the Trial Court for

recording additional evidence and that the said documents

could be considered by it. The decree for specific

performance was accordingly reversed and instead the

defendant was directed to return an amount of ₹1,00,000

to the plaintiff No.1.

6. Considering the averments in paragraph 9 of the plaint and

the response of the defendant to the said averments in

paragraph 11 of the written statement, it is clear that while

the plaintiffs asserted that they had sold the immovable

properties located at Benson Town for arranging the funds

to undertake the transaction, the defendant stated that he

was unaware of this factual aspect.

7. In the application preferred under Order XLI Rule 27(1) of

the Code, the defendant stated that he got the information

that there was no such sale by the plaintiffs in the last week

of June, 2000. After making inquiries in the office of the

Sub-Registrar, he got such information and obtained

certified copies of extracts of said documents. It can be

seen that the High Court has proceeded to consider the

application under provisions of Order XLI Rule 27(1) of the

Code without examining as to whether the additional

evidence sought to be led was supported by the pleadings

of the defendant in the written statement.

8. In our opinion, before undertaking the exercise of

considering whether a party is entitled to lead additional

evidence under Order XLI Rule 27(1) of the Code, it would

be first necessary to examine the pleadings of such party

to gather if the case sought to be set up is pleaded so as

to support the additional evidence that is proposed to be

brought on record. In absence of necessary pleadings in

that regard, permitting a party to lead additional evidence

would result in an unnecessary exercise and such

evidence, if led, would be of no consequence as it may not

be permissible to take such evidence into consideration.

Useful reference in this regard can be made to the

decisions in Bachhaj Nahar Vs. Nilima Mandal and Anr.,

AIR 2009 SC 1103 and Union of India Vs. Ibrahim Uddin

and Anr., (2012) 8 SCC 148. Thus, besides the

requirements prescribed by Order XLI Rule 27(1) of the

Code being fulfilled, it would also be necessary for the

Appellate Court to consider the pleadings of the party

seeking to lead such additional evidence. It is only

thereafter on being satisfied that a case as contemplated

by the provisions of Order XLI Rule 27(1) of the Code has

been made out that such permission can be granted. In

absence of such exercise being undertaken by the High

Court in the present case, we are of the view that it

committed an error in allowing the application moved by

the defendant for leading additional evidence.

9. As we have found that the application for leading

additional evidence has been considered by the Appellate

Court without examining the aspect as to whether the

additional evidence proposed to be led was in consonance

with the pleadings of the defendant and whether such case

had been set up by him coupled with the fact that the

additional evidence taken on record has weighed with it

while reversing the decree, the matter requires reconsideration

by the High Court. Since we find that the

matter requires re-consideration at the hands of the High

Court afresh, we have not gone into the aspect of delay in

deciding the appeal by the High Court as was urged on

behalf of the appellants.

10. For the aforesaid reasons, we find the judgment under

challenge to be unsustainable in law. The appeal requires

to be re-considered along with the application filed by the

defendant under provisions of Order XLI Rule 27(1) of the

Code afresh. Accordingly, the judgment and order dated

30.12.2008 passed in RFA No.440 of 2000 is set aside.

The proceedings are remanded to the High Court to reconsider

the same afresh in accordance with law. Since

the suit was filed in 1997, we request the High Court to

expedite the consideration of RFA No.440 of 2000. It is

clarified that we have not expressed any opinion on the

merits of the matter.

11. The Civil Appeal is allowed in the aforesaid terms, leaving

the parties to bear their own costs.

12. Pending application(s), if any, also stand disposed of.

……..………………………………………J

[PAMIDIGHANTAM SRI NARASIMHA]

……..………………………………………J

[ATUL S. CHANDURKAR]

NEW DELHI;

AUGUST 22, 2025.