Applications to adduce additional evidence under Order XLI Rule 27 must be decided with the appeal.

In brief

The question

Whether an application under Order XLI Rule 27 CPC should be decided before the appeal is heard, or considered at the time of the appeal’s final hearing.

The court held

The petition was partly allowed. The impugned order dated 31 August 2026 was quashed and set aside, and the Order XLI Rule 27 application was restored to the appellate court’s file for consideration along with Regular Civil Appeal No. 276 of 2025, in accordance with law.

It also directed

The High Court expressed no view on the application’s merits; any interim relief was vacated and the Rule was made absolute accordingly.

01Facts

The petitioner challenged, under Article 227 of the Constitution, the order dated 31 August 2026 by which the 6th Additional District Judge, Vadodara, rejected his application under Order XLI Rule 27 of the Code of Civil Procedure (CPC) for additional evidence in Regular Civil Appeal No. 276 of 2025.

pp. 1–2

He contended that the application should have been considered at the final hearing of the appeal. The respondents accepted the cited legal position but submitted that the application lacked merit; they left the question of remand to the Court’s discretion.

pp. 2–3

02Issues

i.Whether an application under Order XLI Rule 27 CPC should be decided before the appeal is heard, or considered at the time of the appeal’s final hearing.

pp. 2, 4–7

ii.Whether the appellate court’s prior rejection of the petitioner’s application required interference under Article 227 and restoration of the application for consideration with the appeal.

pp. 7–8

03Law Applied

Order XLI Rule 27 CPC permits additional evidence in specified circumstances, including where the trial court wrongly excluded evidence, evidence was unavailable despite due diligence, or the appellate court requires it to pronounce judgment or for another substantial cause; it cannot be used to fill lacunae or patch weak points.

pp. 4–5

An application under the Rule should ordinarily be considered at the final hearing of the appeal, after the appellate court has assessed the evidence on record and can determine whether the proposed evidence is relevant or necessary. The Court relied on Union of India v. Ibrahim Uddin, (2012) 8 SCC 148; Malayalam Plantations Ltd. v. State of Kerala, (2010) 13 SCC 487; State of Rajasthan v. T.N. Sahani, (2001) 10 SCC 619; and Mukulbhai Rajendra Thakor, Trustees of Shri Sad Vidya Mandal v. Upendrabhai Anupam Joshi, 2019 AIR (Guj) 42.

pp. 4–7

04Reasoning

The appellate court had rejected the Order XLI Rule 27 application before hearing the appeal on its merits. Applying the cited authorities, the High Court held that the application’s necessity and relevance could be properly assessed only when the appellate court considered the appeal and the evidence already on record.

pp. 4–7

The timing of the rejection was therefore legally erroneous. The High Court did not assess whether the additional evidence met the Rule’s requirements and directed that the application be decided afresh, without influence from the observations in either impugned order.

p. 8