Additional evidence under Order XLI Rule 27 requires foundational pleadings supporting the evidence sought.

The Respondents/Plaintiffs instituted Regular Civil Suit No. 158 of 2000 seeking partition and separate possession of the suit properties.

The Petitioners/Defendants resisted the suit by pleading that the original Plaintiff had relinquished his share in favour of the original Defendant under a Release Deed dated 5 January 1998.

The Trial Court refused to admit that deed on the ground that it was insufficiently stamped and unregistered, and decreed the suit by granting the Plaintiffs a one-half share in the suit property.

In the first appeal, the Defendants applied under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (“CPC”), seeking permission to produce a different Release Deed dated 26 December 1996.

They asserted that the document had not been traceable despite diligent search.

The Appellate Court rejected the application by order dated 26 October 2017.

The Defendants challenged that order under Article 227 of the Constitution of India.

Whether the Appellate Court erred in rejecting the application under Order XLI Rule 27 CPC for production of the Release Deed dated 26 December 1996 as additional evidence?

Whether additional evidence could be permitted when the written statement pleaded relinquishment through a Release Deed dated 5 January 1998, but contained no foundational pleading concerning the different Release Deed dated 26 December 1996?

Whether the application under Order XLI Rule 27 CPC was improperly decided before the hearing of the appeal?

Whether the Petitioners should be granted an opportunity to file a fresh application with better pleadings?

Order XLI Rule 27(1) CPC restricts the production of additional evidence in appeal unless one of the specified conditions is satisfied, including that, despite due diligence, the evidence was not within the party’s knowledge or could not be produced when the decree was passed under Rule 27(1)(aa), or that the Appellate Court requires it to pronounce judgment or for another substantial cause under Rule 27(1)(b); reasons must be recorded when additional evidence is admitted under Rule 27(2).

The court relied on Bachhaj Nahar v. Nilima Mandal, holding that relief or evidence cannot ordinarily be founded on a case not supported by necessary pleadings, and on Union of India v. Ibrahim Uddin, which held that no evidence may be received on matters beyond the pleadings.

It further applied Iqbal Ahmed (Dead) by LRs. v. Abdul Shukoor, which requires an Appellate Court, before allowing additional evidence, to examine both the requirements of Order XLI Rule 27 and whether foundational pleadings support the evidence sought to be introduced.

The supervisory jurisdiction under Article 227 is discretionary, corrective and capable of being declined where the conduct of the party is not bona fide.

The Court held that although the written statement contained a foundational plea of relinquishment, it specifically attributed that relinquishment to the Release Deed dated 5 January 1998.

The proposed additional evidence, however, concerned a separate Release Deed dated 26 December 1996, for which there was no pleading in the written statement.

The Petitioners also failed to explain why the 1998 deed had been pleaded and produced at trial, why the 1996 deed was being relied upon only after the earlier attempt failed, or how both deeds could exist simultaneously.

Consequently, the Petitioners did not establish the due-diligence requirement under Order XLI Rule 27(1)(aa), and the proposed evidence was unsupported by foundational pleadings.

The Court further held that although an application for additional evidence ordinarily may be considered at the hearing of the appeal, the Petitioners themselves had pressed for its earlier hearing and could not challenge the stage of determination after inviting the order; in any event, the ultimate rejection was legally justified.

Given the absence of pleadings and the Petitioners’ unexplained change in position, the Court declined to exercise Article 227 jurisdiction or grant another opportunity to cure the defect.

The challenge to the Appellate Court’s order was therefore rejected, the request to file a fresh application was declined, and the Writ Petition was dismissed.