Power of Appellate Court to Receive Additional Evidence
Discuss the powers of appellate court in receiving the additional evidence.
An appeal is re-hearing and parties are not entitled as of right to produce additional evidence. However, appellate court is empowered to do so u/s 107 r/w 0.41, R.27 C.P.C. The power to allow additional evidence is discretionary in nature but the discretion is circumscribed by the limitations specified in rule 27. In accordance with the rule 27, additional evidence can be allowed where.
- The trial court has improperly refused to admit the evidence which ought to have been admitted.
- The appellate court requires such documents or witness and cannot pronounce judgment with such additional evidence,
- The appellate court requires such evidence for any other sufficient cause.
Refusal of admit evidence
Where the evidence was improperly rejected by the trial court or where it has refused to take it. The appellate court may allow such evidence to be brought on record at the appellate stage however, where the subordinate court has properly rejected the evidence, the provisions of this rule are inapplicable where the document was not relied upon or not tendered at the trial, this rule will be inapplicable
Appellate court requires evidence in order to pronounce judgment
Where an appellate court requires the document to be produced or a witness to be examined in order to enable it to pronounce judgment, it may allow such document or evidence to be produced at the appellate stage. However, such evidence should be required for this purpose by the appellate court itself and not by the party to the appeal for additional evidence cannot be allowed in order to allow a party to path up the weaken parts of its case or fill up omission or enable it to raise a new point. This clause is attracted where on examining the evidence as it stands, some inherent defect becomes apparent and not where discovery of fresh evidence is made outside the court (1996 SCMR 1430)
The ability is not an ability to pronounce any judgment, but one satisfactory to the mind of the court delivering it. The power under this rule may be exercised suo moto or on the application of a party. A party to the appeal may move the court itself on the basis of its own appreciation of the evidence already on record.
Any other substantial cause
The requirement of additional evidence must be the requirement of the court and not of a party. It may, be allowed where a party is unable to produce evidence through no fault of his own or where the court had acted illegally or with material irregularity or in order to do complete justice or where official witness’s presence was not secured by court. It has been held that additional evidence can be admitted under this rule even on the grounds enumerated in O.47, R.1 as they constitute substantial cause but there are cnflictiong judgments in which it is held as not permissible.
Fresh evidence should not be allowed at a later stage if such evidence is of nature as can be easily fabricated or is not of conclusive nature, or is at variance with the pleadings.
Reasons to be recorded
The court is required to record reasons when it allows additional evidence to be produced. The rule is directory and not mandatory, and if reasons are not recorded, the evidence so recorded by the appellate court is not inadmissible if the reception of such additional evidence can be justified u/r 27. But where the reasons are not recorded and justification cannot be found for allowing the additional evidence, the judgment of the lower court may be set aside in the second appeal for failure to record reasons for receiving the additional evidence may be disregarded by the second appellate court. The reasons should be factual leading to the inference of necessity.