Q :- Documents were not produced before trial court as those documents were not traceable and were not exhibited as xerox copies were filed. whether any party can produce original documents before appellate court? whether appellate court can allow production of original documents at appellate stage only on the ground that those documents were not traceable at the time of proceeding before trial court?
Ans:- First appeals often raise a recurring procedural problem: can a party produce documents for the first time in appeal, especially when the originals were not filed before the trial court? The answer is yes, but only in limited circumstances, because additional evidence in appeal is an exception and not a matter of right.
The governing framework lies in Section 107 CPC and Order XLI Rules 27, 28 and 29 CPC. These provisions give the appellate court flexibility, but only within a structured and reasoned process.
The basic rule
An appeal is ordinarily decided on the record of the trial court. A party cannot treat the appellate stage as an opportunity to repair omissions, fill gaps, or improve a weak case.
Key takeaway
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First appeal is not a second trial.
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New documents cannot be produced as of right.
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Additional evidence is allowed only within the limits of Order XLI Rule 27 CPC.
Can original documents be produced in appeal
If only xerox copies were filed before the trial court and the originals were said to be untraceable, the party may seek permission to produce the originals before the appellate court. But the mere statement that the originals were “not traceable” is not enough.
The party must establish due diligence and satisfy the court that the case truly falls within Order XLI Rule 27. The appellate court must be satisfied that the request is genuine and not an attempt to fill a lacuna.
What the party must show
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Where the originals were kept.
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What efforts were made to trace them.
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Why they could not be produced during trial despite due diligence
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When and how they were later found.
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Why their production is necessary for deciding the appeal.
Xerox copies do not solve the problem
The fact that xerox copies were filed before the trial court does not automatically entitle a party to file originals at the appellate stage. The court must still examine whether the omission was bona fide and whether the statutory conditions for additional evidence are satisfied.
Even if the originals are allowed to be brought on record, they do not stand proved automatically. They must still be proved according to law.
Important point
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Admission on record is not the same as proof in evidence.
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The opposite party can still object to admissibility and authenticity.
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The opposite party must get a chance to cross-examine and rebut.
Documents relating to subsequent events
A different situation arises where the document relates to a later development, meaning an event that took place after the decree or after the trial. Such documents stand on a different footing from documents that existed during the suit but were omitted earlier.
Courts may consider subsequent developments where they materially affect the relief, alter the legal relationship of the parties, affect enforceability, or where ignoring them would lead to ineffective relief or multiplicity of proceedings.
When later events may be considered
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When the later event materially affects the relief in appeal.
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When it changes the legal or factual situation between the parties.
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When ignoring it would make the relief ineffective.
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When consideration of the event avoids further litigation.
But there is a limit
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A later event cannot be used as a pretext to introduce an entirely new case.
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The event must be genuine, relevant, and material.The proper course is still an application for additional evidence.
Is amendment of appeal memo necessary
If a party relies on a subsequent event, a practical procedural question arises: must the memorandum of appeal be amended? In many cases, amendment is the safer course.
If the later document is being filed only for a limited purpose, amendment may not always be indispensable. But if the party wants to base a new ground of challenge on that event, or asks the court to mould relief on that basis, amendment should ordinarily be sought.
Safe working rule
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Limited reference to later event: amendment may not always be necessary.
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New ground based on later event: amendment is advisable
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Prayer for moulding relief on later event: amendment should ordinarily be sought.
What happens after additional evidence is allowed
This is the stage most often mishandled in practice. Once additional evidence is allowed, the appellate court must follow the procedure laid down in the Code.
First, the court must record reasons for admitting the evidence. Second, it must identify the precise points to which the evidence is confined under Order XLI Rule 29. Third, it must either record the evidence itself or direct the trial court, or another subordinate court, to record it under Order XLI Rule 28.
Mandatory procedural steps
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Record reasons for admitting additional evidence.
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Specify the exact points for which the evidence is received.
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Decide whether the appellate court will record evidence itself or send it to the subordinate court.
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Give the opposite party full opportunity to object, challenge, and rebut.
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Hear and decide the appeal finally after the evidence is properly recorded.
Additional evidence does not mean automatic remand
A common error is to assume that once additional evidence is permitted, the whole matter must be remanded. That is incorrect.
The power to admit additional evidence and the power to remand are distinct. Once evidence is allowed, the normal course is under Order XLI Rule 28, not an automatic remand of the entire suit.
District Judges should remember
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Additional evidence and remand operate in different fields.
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The appellate court can itself record evidence.
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Or it can direct the subordinate court to record evidence and return it.
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Full remand is justified only if Order XLI Rules 23, 23A, or 25 are independently attracted.
What order should the first appellate court pass
A good appellate order must be clear, limited, and reasoned. The court should first decide the application under Order XLI Rule 27 by stating the exact ground on which the evidence is being allowed or refused.
If the application is allowed, the court should specify the documents admitted, identify the issues to which the evidence is confined, and state whether the evidence will be recorded by the appellate court itself or by the subordinate court. It should also expressly protect the other side’s right to objection, cross-examination, and rebuttal.
Structure of a proper order
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Decide the Rule 27 application by a speaking order.
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Mention the exact statutory ground.
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Identify the documents permitted.
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Confine the evidence to specific points under Rule 29
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Follow Rule 28 for recording of evidence.
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Preserve full opportunity to the opposite party.
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Decide the appeal on merits after the additional evidence is duly proved.
Bullet highlights for quick reading
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First appeal is normally confined to the trial court record.
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Additional evidence is exceptional.
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“Documents were not traceable” is not enough by itself.
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Due diligence must be shown.
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Originals may be allowed in appeal, but only under Order XLI Rule 27 CPC.
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Later events may also be considered if materially relevant.
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If a later event becomes a fresh ground of challenge, amendment of appeal memo is usually the safer course.
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Once additional evidence is allowed, Rules 28 and 29 must be followed.
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Additional evidence does not automatically require remand.
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A disciplined appellate order is essential.
Closing line
The strength of appellate adjudication lies in balance: the court must not shut out material that law allows it to consider, but it must equally prevent the appeal from turning into a disguised retrial.