Rajasthan High Court – Jodhpur
Lrs.Of Bal Bai And Ors vs Laxman Singh And Ors. … on 18 April, 2026
[2026:RJ-JD:18578] (1 of 22) [CMA-1193/2006]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Miscellaneous Appeal No. 1193/2006
1. Legal Representative of Bal Bai W/o Late Shri Bhur Dan
Charan, resident of Bhadora,
1/1. Sawai Dan S/o Shri Chain Dan Charan, resident of
Bhadora.
2. Sayar Bai D/o Late Shri Bhur Dan Charan, W/o Shri Shambu
Dan Charan, resident of Bhadora, at present R/o-Dogari, Tehsil &
District Jaipur (Raj.).
3. Mad Bai D/o Late Shri Bhur Dan Charan W/o Shri Ganpat Ram
Charan, resident of Bhadora, at present R/o Kharadi, Tehsil &
District Pali (Raj.).
4. Chhota Bai D/o Late Shri Bhur Dan Charan W/o Shri Shankar
Dan Charan, resident of Bhadora at present R/o Dogari, Tehsil &
District Jaipur (Raj.).
----Appellants/Plaintiffs
Versus
1. Legal Representatives of Laxman Singh S/0 Ski Paras Dan
Charan
1/1 Smi. Naini @ Jaini W/o Late Shri Laxman Singh, resident of
Bhadora, Tehsil & District Nagaur.
1/2 Smt. Desot W/o Shri Ishwar Singh D/o Late Shri Laxman
Singh, resident of Jaliwada, P.S. Pipar City, Tehsil Bilara District
Jodhpur.
1/3 Hanuman Singh S/o Late Shri Laxman Singh, by caste
Charan, Near Chungi Chowki, Nagaur.
1/4 Mahavir Singh S/o Late Shri Laxman Singh, resident of
Manasar, Near Chungi Chowki, Nagaur.
2. Legal Representatives of Shri Jogi Dan Charan S/o Shri Bagar
Dan Charan.
2/1. Sugan Kanwar W/o Late Shri Jogi Dan Charan.
2/2. Bheekh Dan S/o Late Shri Jogi Dan Charan.
2/3. Narayan Dan S/o Late Shri Jogi Dan Charan Resident of
Bhadora Tehsil & District Nagaur.
2/4. Samaju D/o Late Shri Jogi Dan Charan W/o Suraj Dan
Charan, resident of Seethal, Tehsil & District Bikaner (Raj.).
2/5. Dariyao Kanwar D/o Late Shri Jogi Dan Charan W/o Shri
Bhanu Dan Charan by caste Charan, resident of Indokalan, Tehsil
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& District Nagaur (Raj.).
2/6. Vimla D/o Late Shri Jogi Dan Charan W/o Shri Indraj Dan
Charan, resident of Beh Tehsil Osian, District Jodhpur.
2/7 Seema D/o Late Shri Jogi Dan Charan W/o Shri Lalit Charan,
resident of Gopeshwar Basti, Bikaner (Raj.).
3. Parvat Dan S/o Shri Bhoor Dan,
4. Chain Dan S/o Shri Bhoor Dan,
5. Jai Karan S/o Shri Bhoor Dan,
----Respondents/Defendants
For Appellant(s) : Mr. D.D. Chitlangi
For Respondent(s) : Mr. Kapil Bissa
Mr. Vishvajeet Joshi
Ms. Reema Gupta
HON'BLE MR. JUSTICE SANDEEP SHAH
Judgment
Reportable
18/04/2026
1. The appellants by way of filing the present misc. appeal has
challenged the judgment and decree dated 09.05.2006
passed by the learned Additional District Judge, Nagaur, in
Civil Appeal Decree No. 19/2004 (Laxman Singh & Ors. vs.
Bala Bai), whereby, the learned appellate Court, while
remanding the appeal to trial Court has accepted the
application filed under Order XLI, Rule 27 read with Section
151 CPC by the defendants for taking the documents on
record and, if required, for framing an additional issue and
recording additional evidence.
Factual Matrix:
2. The facts necessary for adjudication of the present appeal
are that a civil suit for declaration and injunction was filed
by the appellants/plaintiffs before the learned trial court
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against respondent Nos. 1 and 2, while also impleading
respondent Nos. 3 to 5 (family members, i.e., brothers of
the plaintiff). It was asserted in the suit that the
predecessor-in-title of the appellants, Bhur Dan Charan,
was in possession and ownership of the land by virtue of a
sale deed, for which a 'Patta' was issued by the Gram
Panchayat on 10.12.1960.
3. It was further stated that adjacent to the said land, there
existed a right of way, which had been used since time
immemorial as a public passage for approaching the temple.
The plaintiffs asserted that respondent No. 2, in collusion
with the authorities, got a 'Patta' issued in his favour and
thereafter executed a sale deed dated 09.06.1982 in favour
of respondent No. 1, fraudulently including the public way
as well as a portion of the property belonging to the
plaintiffs (covered under the 'Patta' issued in favour of Bhur
Dan Charan). Subsequently, respondent No. 2 obtained
another 'Patta' for the same land from the Gram Panchayat
on 03.04.1983.
4. The plaintiffs further asserted that since the 'Patta' was
issued in respect of a portion of land, already under their
ownership, and as the earlier 'Patta' was already in
existence, coupled with the fact that the public land (i.e.,
the right of way to the temple) was also wrongly included in
the 'Patta', the sale deed being null and void is liable to be
quashed.
5. The plaintiff further stated that respondent Nos. 3 to 5
initially attempted to restrain respondent Nos. 1 and 2 from
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undertaking the encroachment by constructing a wall over
the way, however, respondent No. 2 filed a police report,
and thereafter the parties have entered into a compromise.
The plaintiffs asserted that the said compromise was not
binding upon them, as they were not a party to it. Upon
coming to know of the encroachment being carried out, the
present suit was filed. The plaintiff thus prayed for a decree
of declaration and injunction.
6. Respondent Nos. 1 and 2 filed a written statement denying
the contents of the plaint and submitted that Bhur Dan
Charan himself was the Panch and had fraudulently
obtained a 'Patta' over the land. It was submitted that the
'Patta' issued in favour of respondent No. 2 was rightly
issued by the authorities after following the prescribed
procedure, and that the alleged chowk in question was
being maintained by them alone.
7. It was also submitted that the right of way, as alleged by
the plaintiffs, never existed, and that construction over the
said land had been carried out by them way back in the
year 1983. In their additional objections, the respondents
submitted that earlier a suit, No. 30/1984, had been filed by
respondent Nos. 3 to 5, which was subsequently withdrawn
on the basis of a compromise. Thereafter, the present suit
came to be filed.
8. It was thus objected by the respondents that the present
suit is not maintainable, and that the plaintiffs are bound by
the compromise entered into between respondent Nos. 3 to
5 and respondent Nos. 1 and 2.
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9. Based upon the pleadings of the parties, the learned trial
court framed six issues for adjudication.
10. The plaintiffs examined eight witnesses in support of their
claim, while the respondents examined ten witnesses in
support of their defence. During the course of cross-
examination of respondent No. 1- Laxman Singh, a question
was asked regarding filing of earlier suit and the criminal
case being lodged, to which he responded (details of which
are mentioned in paragraph No. 31 of trial court's order).
11. The learned trial court, while deciding Issue No. 4, dealt
with the earlier civil suit also, including the criminal
proceedings between the parties and the compromise
entered in pursuant thereto. Thereafter, the learned trial
court decreed the suit filed by the plaintiffs vide judgment
and decree dated 16.04.2004.
12. Being aggrieved against the same, the appeal was filed by
the defendants. During the pendency of the appeal, an
application under Order XLI, Rule 27 read with Section 151
CPC was filed by the respondents on 17.08.2006, seeking
permission to place additional documents on record. These
documents included the plaint of Civil Original Case No.
30/1984, written statement, the order dated 12.07.1988
permitting withdrawal of said suit, as well as the entire
order-sheets relating to the case at hand.
13. In the application, it was stated that the documents could
not be filed before the trial court due to a bona fide
mistake, and that the documents in question were
necessary for proper adjudication of the matter.
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14. The present appellants filed a reply to the said application,
and objected the same. It was asserted that in the written
statement itself, reference to the documents in question had
already been made by the respondents/defendants, and
thus they were aware of their existence. The appellants
further raised objections that none of the ingredients,
required under Order XLI, Rule 27 CPC, were satisfied in the
present case so as to invoke the powers of the learned
appellate court under the said provision. It was also
asserted that the provision in question cannot be invoked
for the purpose of curing the lacuna that remained on the
part of the respondents.
15. The learned appellate court, by way of impugned order
dated 09.05.2006, while allowing the application under
Order XLI, Rule 27 read with Section 151 CPC, admitted
that the contents of the application did not make out a case
under Order XLI, Rule 27 (1)(a) or (aa) CPC, and thus
invoked its powers under Section 151 CPC as well as under
Order XLI, Rule 27(1)(b) CPC and permitted the documents
to be taken on record, observing that they were necessary
for adjudication of the case.
16. Thereafter, the learned appellate court, while quashing and
setting aside the decree dated 16.04.2004, remanded the
matter to the trial court for framing fresh issues and
permitting fresh evidence on the issues in question, if so
required. Being aggrieved by the same, the present appeal
has been filed.
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Arguments on behalf of the learned Counsel for
Appellants:
17. Learned counsel for the appellants raised an objection that
since none of the ingredients under Order XLI, Rule 27(1)
CPC had been pleaded in the application filed by the
respondents, there was no occasion for the learned
appellate court to invoke jurisdiction under Order XLI, Rule
27 CPC and to pass the impugned order. He further
submitted that when a specific provision was available
under the law, i.e., Order XLI, Rule 27 CPC, the appellate
court had no power to invoke Section 151 CPC. It was
asserted that Section 151 CPC could be invoked only in
cases where no specific provision was available, and where,
with a view to impart justice, the court deems it appropriate
to exercise inherent powers. However, in the present case,
since the matter was governed by Order XLI, Rule 27 CPC,
the powers under Section 151 CPC could not have been
invoked by the learned appellate court.
18. Learned counsel further submitted that the existence of the
documents was admittedly within the knowledge of the
defendants, which is evident from the written statement
itself. He pointed out that even during the cross-
examination of the defendants, reference to the documents
was made. However, despite such knowledge, the
defendants did not exercise due diligence and failed to file
any application at that stage for placing the documents on
record or for adducing additional evidence. Therefore, at
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this stage, the application could not have been allowed
merely to fill up the lacuna on the part of the defence.
19. He further submitted that the order passed by the learned
appellate court is cryptic, inasmuch as, the appellate court
itself was not clear whether an additional issue was to be
framed after taking the documents on record. The appellate
court directed the trial court to frame additional issues, if so
required, and to permit additional evidence, if so required,
which shows uncertainty in its approach. It was thus
asserted that the order in question does not fall within the
four corners of Order XLI, Rule 23 CPC and is inherently
illegal.
20. He referred to Order XLI, Rule 25 CPC, and submitted that if
the appellate court was of the view that some additional
issues were required to be framed, it was the bounden duty
of the appellate court itself to frame such issues and
thereafter remit the matter to the trial court in consonance
with the provisions of Order XLI, Rule 25 CPC. Since this
procedure was not followed, the impugned order of remand
deserves to be quashed and set aside.
Arguments on behalf of the learned counsel for
respondents:
21. Learned counsel for the respondents, while supporting the
impugned order, submitted that the learned appellate court
had rightly passed the order by taking aid of Section 151
CPC. He further contended that the earlier suit, i.e., Suit No.
30/1984, clinches the entire issue and, therefore, the
present suit was not maintainable. It was thus necessary to
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bring the documents relating thereto on record. He
submitted that since the issue of jurisdiction arises, the
appellate court had rightly allowed the application under
Order XLI, Rule 27 CPC. Accordingly, it was urged that the
appeal filed by the appellants deserves to be dismissed.
Analysis:
22. Heard the counsel for parties and perused the entire record.
Firstly, the admitted facts of the case are that, with regard
to the earlier suit No. 30/1984, the appellants were not
parties to that suit, which was contested by the brothers of
the appellants, who are defendant Nos. 3 to 5 in the
present suit.
23. Secondly, it remains undisputed that in the plaint filed by
the appellants, there was a specific reference to the earlier
dispute between respondent Nos. 3 to 5 and the plaintiffs,
in respect of which, a criminal case had also been lodged.
24. Thirdly, in the written statement under the heading on
"Special Objections," the defendants specifically referred to
the earlier suit No. 30/1984 filed by respondent Nos. 3 to 5
and raised objections regarding the maintainability of the
present suit, citing the compromise arrived at between the
parties in that earlier suit.
25. Fourthly, respondent No. 1- Laxman Singh, during his cross-
examination, was specifically questioned regarding the
earlier suit, the criminal case, and the compromise entered
into between the parties.
26. Thus, in spite of all these references and opportunities, the
respondents did not exercise due diligence and failed to file
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any application for placing the documents on record at the
appropriate stage. Therefore, they cannot now be permitted
to cure this lapse by filing an application under Order XLI,
Rule 27 CPC to bring the documents on record.
27. In view of the above, the Court is now required to examine
whether the present case falls within the ambit of Order
XLI, Rule 27 CPC? , and whether the learned appellate court
was justified in allowing the application filed by the
respondents?
28. The provision of Order XLI, Rule 27 CPC reads as under:-
"27. Production of additional evidence in Appellate
Court.--(1) The parties to an appeal shall not be
entitled to produce additional evidence, whether
oral or documentary, in the Appellate Court. But if
--
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
[(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or]
(b) the Appellate Court requires any document to
be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause, the Appellate Court may allow
such evidence or document to be produced, or
witness to be examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.”
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29. A minute analysis of the provision reveals that Order XLI,
Rule 27 CPC can be invoked in three circumstances:-
i. Firstly, when the trial court has refused to admit
evidence, which ought to have been admitted.
ii. Secondly, when the party seeking to produce additional
evidence establishes that, despite exercising due diligence,
such evidence was not within his knowledge or could not,
after due diligence, be produced at the time when the
decree appealed against was passed.
iii. Thirdly, when the appellate court requires any
document to be produced or any witness to be examined in
order to enable it to pronounce judgment, or for any other
substantial cause.
30. Thus, whenever an application under Order XLI, Rule 27
CPC is filed, it must be considered strictly within the
framework of these three contingencies.
31. In the present case, the appellate court itself concluded that
the matter did not fall within the ambit of Order XLI, Rule
27 CPC. Consequently, it invoked Section 151 CPC to permit
the documents to be taken on record. Section 151 CPC
provides as under:
“151. Saving of inherent powers of Court.–
Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to
make such orders as may be necessary for the
ends of justice or to prevent abuse of the process
of the Court.”
32. A bare perusal of Section 151 CPC reveals that it can be
invoked only when no specific provision is available under
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the Code, and where, in the facts of the case, the Court
deems it appropriate to exercise its inherent powers to
make such orders as may be necessary for securing the
ends of justice or to prevent abuse of the process of the
Court. Section 151 CPC cannot be exercised where a
specific provision is already available under the Code itself,
such as the provision relating to the production of additional
evidence. The Apex Court emphasized this aspect in the
case of Mohit alias Sonu and Anr. Vs State of Uttar
Pradesh, (2013) 7 SCC 789. The relevant portion reads:
29. Courts possess inherent power in other statute
also like the Code of Civil Procedure (CPC), Section
151 whereof deals with such power. Section 151
CPC reads:
“151. Saving of inherent powers of
court.- Nothing in this Code shall be deemed to
limit or otherwise affect the inherent power of the
court to make such orders as may be necessary for
the ends of justice or to prevent abuse of the
process of the court.”
30. This Court in Padam Sen v. State of U.P.
regarding inherent power of the Court under
Section 151 CPC observed: (AIR p. 219, para 8)
“8. … The inherent powers of the court are
in addition to the powers specifically conferred on
the court by the Code. They are complementary to
those powers and therefore it must be held that
the Court is free to exercise them for the purposes
mentioned in Section 151 of the Code
when the exercise of those powers is not in any
way in conflict with what has been expressly
provided in the Code or against the intentions of
the legislature. It is also well recognised that the
inherent power is not to be exercised in a manner
which will be contrary to or different from the
procedure expressly provided in the Code.”
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31. In a Constitution Bench decision rendered in
Manohar Lal Chopra v. Seth Hiralal, this Court held
that: (AIR p. 537, para 43)
“43. … The inherent jurisdiction of the court
to make orders ex debito justitiae is undoubtedly
affirmed by Section 151 of the Code, but
[inherent] jurisdiction cannot be exercised so as to
nullify the provisions of the Code of Civil
Procedure. Where the Code of Civil Procedure
deals expressly with a particular matter, the
provision should normally be regarded as
exhaustive.”
32. The intention of the legislature enacting the
Code of Criminal Procedure and the Code of Civil
Procedure vis-à-vis the law laid down by this Court
it can safely be concluded that when there is a
specific remedy provided by way of appeal or
revision the inherent power under Section 482
CrPC or Section 151 CPC cannot and should not be
resorted to.
33. The Apex Court in the case of Ram Prakash Agarwal and
Anr. Vs Gopi Krishan, (2013) 11 SCC 296 held as under:
14. ….Inherent powers may be exercised ex
debito justitiae in those cases, where there is no
express provision in CPC. The said powers cannot
be exercised in contravention of, or in conflict
with, or upon ignoring express and specific
provisions of the law.
19. In view of the above, the law on this
issue stands crystallised to the effect that the
inherent powers enshrined under Section 151 CPC
can be exercised only where no remedy has been
provided for in any other provision of CPC.
However, inherent powers cannot be used in
conflict of any other existing provision, or in case
a remedy has been provided for by any other
provision of CPC…..
28.2. Inherent powers under Section 151
CPC can be exercised by the Court to redress only
such a grievance, for which no remedy is provided
for under CPC.
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34. Thus, in the present case, the exercise of power under
Section 151 CPC by the learned appellate court is ex facie
illegal and cannot be countenanced. The appellate court was
required to ensure that the case in hand fell within the four
corners of Order XLI, Rule 27 CPC and was further required
to record specific reasons for allowing the application.
35. A bare perusal of the impugned order dated 09.05.2006
reveals that no satisfactory reasons whatsoever have been
assigned by the learned appellate court while allowing the
application and thereafter remanding the matter.
36. Moreover, if at all the appellate court was of the view that
the documents were necessary and fell within the ambit of
Order XLI, Rule 27 CPC, then it was duty-bound to decide
whether framing of an additional issue was necessary or
not, in consonance with Order XLI, Rule 25 CPC. It could
not have passed an order directing the trial court to decide
whether an additional issue was required to be framed or
not. In this regard, Order XLI, Rule 25 CPC is reproduced as
under:-
“25. Where Appellate Court may frame issues
and refer them for trial to Court whose
decree appealed from.–Where the Court from
whose decree the appeal is preferred has omitted
to frame or try any issue, or to determine any
question of fact, which appears to the Appellate
Court essential to the right decision of the suit
upon the merits, the Appellate Court may, if
necessary, frame issues, and refer the same for
trial to the Court from whose decree the appeal is
preferred, and in such case shall direct such Court
to take the additional evidence required;
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and shall return the evidence to the Appellate
Court together with its findings thereon and the
reasons therefor 1[within such time as may be
fixed by the Appellate Court or extended by it
from time to time].”
37. Furthermore, so far as the question of remand is concerned,
the power to remand is available to the appellate court in
consonance with the provisions of Order XLI, Rule 23 or
Order XLI, Rule 23-A CPC. Rule 23 comes into picture when
the suit has been disposed of upon a preliminary issue,
which is not the situation in the present case. Rule 23-A
comes into operation when the case has been decided
otherwise than on a preliminary issue and the appellate
court, while reversing the decree, considers it to be a fit
case for retrial. However, the same is also not the issue in
the case at hand. Thus, if any order of remand, other than
in exercise of the aforesaid two provisions, is to be passed,
the same can only be made while exercising powers under
38. A bare perusal of the provision reveals that the powers
under Order XLI, Rule 25 CPC can be exercised when the
appellate court is of the firm view that an issue is required
to be framed and that such issue is essential for the proper
adjudication of the suit on merits. In such circumstances,
the appellate court must itself frame the issue and
thereafter remit the matter to the trial court for recording
additional evidence, if so required.
39. In the present case, a perusal of the impugned order dated
09.05.2006 shows that not only the appellate court failed to
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frame any issue, but it also did not assign any reasons for
remanding the matter. Instead, a cryptic order was passed
directing the trial court to frame an issue “if so required”
and to take additional evidence “if so required.” Such an
approach is beyond the scope of remand as contemplated
under Order XLI, Rule 23 CPC, Rule 23-A CPC or Order XLI,
Rule 25 CPC. The appellate court was duty-bound to first
decide whether framing of an additional issue was
necessary, and if so, it was mandatory for the appellate
court itself to frame the issue prior to passing the remand
order.
40. This, coupled with the fact that the respondents were well
aware of the earlier suit and had raised objections in their
written statement also, leaves no occasion for the appellate
court to permit the respondents to cure their lapse by way
of an application under Order XLI, Rule 27 CPC. Moreover,
the appellate court failed to consider that the plaintiffs were
not even parties to the earlier suit, and whether the earlier
decree would be binding upon them. No finding whatsoever
has been recorded in this regard while passing the
impugned order.
41. Thus, even when examined from the angle of Clause (b) of
sub-rule (1) of Order XLI, Rule 27 CPC, this Court is of the
view that the respondents have failed to demonstrate that
the documents in question were required for pronouncing
judgment or were otherwise necessary for any substantial
cause.
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42. Recently, the Hon’ble Apex Court in Govind Singh v.
Union of India, reported in 2026 INSC 211, by
judgment dated 09.03.2006, dealt with an identical
contingency and held as under:-
“11.2. In order to properly appreciate the
controversy involved, it is necessary to first advert
to the statutory provision applicable to the case at
hand. Order XLI Rule 27 of CPC reads as follows:-
27. Production of additional evidence in Appellate
Court.- (1) The parties to an appeal shall not be
entitled to produce additional evidence, whether
oral or documentary, in the Appellate Court. But if
(a)…
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him
at the time when the decree appealed against was
passed,or
(b)…
the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.
(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall
record the reason for its admission.” (emphasis
supplied) 11.3. Rule 27, being couched in negative
terms, makes it abundantly clear that parties to an
appeal are not entitled to adduce additional
evidence, whether oral or documentary, save and
except in the circumstances expressly enumerated
therein. The provision contemplates only three
eventualities in which additional evidence may be
permitted: first, where the court which passed the
decree has refused to admit evidence which ought
to have been admitted: second, where the party
seeking to adduce such evidence establishes that.
notwithstanding the exercise of due diligence, the
evidence was not within its knowledge or could not
have been produced at the time when the decree
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[2026:RJ-JD:18578] (18 of 22) [CMA-1193/2006]
under appeal was passed, and third, where the
appellate court itself requires any document to be
produced or any witness to be examined in
order to enable it to pronounce judgment or
for any other substantial cause.
11.4. Accordingly, it is only upon satisfaction of
any of the aforesaid three contingencies that an
application under Order XLI Rule 27 of CPC can be
entertained. Sub-rule (2) of the said provision
further mandates that where the appellate court
forms an opinion that additional evidence is
required to be admitted, it must record the reasons
for such admission. While elucidating the scope
and object of Order XLI Rule 27 of CPC, this Court,
in Union of India v. Ibrahim Uddin.7 undertook an
exhaustive analysis of the provision. The relevant
extract is reproduced hereinafter:-
“36. The general principle is that the appellate
court should not travel outside the record of the
lower court and cannot take any evidence in
appeal. However, as an exception, Order XLI Rule
27 CPC enables the appellate court to take
additional evidence in exceptional circumstances.
The appellate court may permit additional evidence
only and only if the conditions laid down in this
Rule are found to exist. The parties are not
entitled, as of right, to the admission of such
evidence.
Thus, the provision does not apply, when on the
basis of the evidence on record, the appellate court
can pronounce a satisfactory judgment. The matter
is entirely within the discretion of the court and is
to be used sparingly. Such a discretion is only a
judicial discretion circumscribed by the limitation
specified in the Rule itself…..
38. Under Order XLI Rule 27 CPC, the appellate
court has the power to allow a document to be
produced and a witness to be examined. But the
requirement of the said court must be limited to
those cases where it found it necessary to obtain
such evidence for enabling it to pronounce
judgment. This provision does not entitle the
appellate court to let in fresh evidence at the(Uploaded on 28/04/2026 at 03:47:44 PM)
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[2026:RJ-JD:18578] (19 of 22) [CMA-1193/2006]appellate stage where even without such evidence
it 7 (2012) 8 SCC 148 can pronounce judgment in
a case. It does not entitle the appellate court to let
in fresh evidence only for the purpose of
pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the
evidence that the appellate court is empowered to
admit additional evidence.
….
XLI. The words “for any other substantial cause”
must be read with the word “requires” in the
beginning of the sentence, so that it is only where,
for any other substantial cause, the appellate court
requires additional evidence, that this Rule will
apply e.g. when evidence has been taken by the
lower court so imperfectly that the appellate court
cannot pass a satisfactory judgment.” (emphasis
supplied) Thus, a holistic reading of the aforesaid
decision makes it clear that the appellate court’s
inquiry, while considering an application for leading
additional evidence, is confined to examining
whether such evidence is necessary to remove a
lacuna in the case. More importantly, the appellate
court may permit additional evidence only upon
being satisfied that the conditions expressly
stipulated under Order XLI Rule zy of CPC fulfilled.
The parties do not possess any vested or
automatic right to seek admission of additional
evidence at the appellate stage. Consequently, the
provision has no application where the appellate
court is in a position to render a satisfactory and
reasoned judgment on the basis of the evidence
already available on record.
11.5. In State of Karnataka v. K.C. Subramanya, 8
the appellants therein had moved an
application before the appellate court under Order
XLI Rule 27 of CPC seeking leave to produce a map
of the area to establish that the disputed land
constituted a public road. This Court, while
affirming the High Court’s decision to reject the
said application, held as follows:
“4….
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[2026:RJ-JD:18578] (20 of 22) [CMA-1193/2006]On perusal of this provision, it is unambiguously
clear that the party can seek liberty to produce
additional evidence at the appellate stage, but the
same can be permitted only if the evidence sought
to be produced could not be produced at the stage
of trial in spite of exercise of due diligence and that
the evidence could not be produced as it was not
within his knowledge and hence was fit to be
produced by the appellant before the appellate
forum.
5. It is thus clear that there are conditions
precedent before allowing a party to adduce
additional evidence at the stage of appeal, which
specifically incorporates conditions to the effect
that the party in spite of due diligence could not
produce the evidence and the same cannot be
(2014) 13 SCC 468 allowed to be done at his
leisure or sweet will.” (emphasis supplied) This
Court thus categorically held that unless the
requirements stipulated under Order XLI Rule 27 of
CPC are strictly satisfied, a party cannot be
permitted to adduce additional evidence at the
appellate stage. Such permission cannot be
granted as a matter of course, nor can additional
evidence be introduced at the whim or convenience
of a litigating party.
11.6. Where the appellate court permits additional
evidence to be adduced, Order XLI Rule 27(2) of
CPC casts a mandatory obligation upon the court
to record the reasons for such admission. In
Ibrahim Uddin (supra), this Court elucidated the
rationale underlying the requirement of recording
reasons in the following terms:-
“42. Whenever the appellate court admits
additional evidence it should record its reasons for
doing so (sub-rule (2)). It is a salutary provision
which operates as a check against a too easy
reception of evidence at a late stage of litigation
and the statement of reasons may inspire
confidence and disarm objection. Another reason of
this requirement is that, where a further appeal
lies from the decision, the record of reasons will be
useful and necessary for the court of further appeal(Uploaded on 28/04/2026 at 03:47:44 PM)
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[2026:RJ-JD:18578] (21 of 22) [CMA-1193/2006]to see, if the discretion under this Rule has been
properly exercised by the court below. The
omission to record the reasons must, therefore, be
treated as a serious defect. But this provision is
only directory and not mandatory, if the reception
of such evidence can be justified under the Rule.”
11.7. The procedural framework under Order XLI of
CPC makes it abundantly clear that an appeal is
ordinarily to be decided on the evidence adduced
before the Trial Court. The Appellate Court is not
expected to embark upon a fresh fact-finding
exercise or permit production of additional
evidence as a matter of routine. Where the
Appellate Court is satisfied that the material
already available on record is sufficient to enable it
to pronounce judgment, it is well within its
jurisdiction to confine its consideration to the
evidence forming part of the record of the courts
below.”
43. Taking guidance from the aforesaid judgment, it is evident
that the expression “any other substantial cause” under
Order XLI, Rule 27 CPC must be read in consonance with
the word “requires” at the beginning of the provision, and
cannot be interpreted in isolation. Thus, it is the duty of the
appellate court, while allowing an application under Order
XLI, Rule 27 CPC, to record justifiable reasons for its
conclusion regarding the applicability of Clause (b) of sub-
rule (1), which the appellate Court has failed to do in the
present case. There was no justification on the part of the
Appellate Court in allowing the production of additional
evidence, and no reasons have been assigned as to how the
documents in question were relevant to the case at hand,
particularly when the earlier lis was between the defendants
inter se and the plaintiffs were not parties to the said suit.
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[2026:RJ-JD:18578] (22 of 22) [CMA-1193/2006]
44. The impugned remand order has thus been passed without
considering the law applicable and in total disregard of the
provisions of Order XLI Rule 27 CPC. Accordingly, the
impugned order cannot be sustained.
45. In view of the above discussion, the appeal is allowed. The
impugned order dated 09.05.2006 passed by the appellate
court is hereby quashed and set aside. The matter is
remanded back to the appellate court with a direction to
decide the appeal on merits. The application filed by the
respondents under Order XLI, Rule 27 CPC stands
dismissed. The parties shall appear before the appellate
Court on 20.05.2026.
46. There shall be no order as to costs.
47. Record be sent back forthwith.
(SANDEEP SHAH),J
10-Raoof Khan/-
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