Remand for recording evidence on additional documents admitted during appeal under Order XLI.

The appellant (original defendant) challenged the judgment of the First Appellate Court dated 30.08.2007, which had set aside the Trial Court’s dismissal of the respondents' (original plaintiffs) suit

The primary dispute concerns whether the respondents are the legitimate wife and son of the deceased, Morarji Kalyanji Parmar

The Trial Court originally dismissed the suit because the birth certificate of respondent No. 2 was a photocopy (Xerox) and remained unproved/unexhibited

During the pendency of the Second Appeal, the High Court admitted a certified copy of the birth certificate as additional evidence via an order dated 13.07.2010 under Order XLI Rule 27 of the CPC

1. Whether the birth certificate, which was not executed or proved in the lower courts, could be relied upon by the appellate court to decree the suit

2. Whether the question regarding the validity of the marriage and paternity could be decided in favor of the respondents under the given circumstances

3. What is the proper procedure for recording evidence when additional evidence is admitted at the appellate stage

Specifically, Order XLI Rule 28 dictates the mode of taking additional evidence, allowing an Appellate Court to either record the evidence itself or direct a subordinate court to do so and remit the evidence back to the Appellate Court

Furthermore, Order XLI Rule 29 requires the Appellate Court to specify and record the specific points to which the additional evidence must be confined

The High Court observed that since a Co-ordinate Bench had already admitted the certified copy of the birth certificate as additional evidence, the document needed to be formally proved to resolve the core controversy of paternity

The court noted that the Trial Court's initial dismissal was rooted in the lack of proof regarding this specific document

Invoking Order XLI Rule 28, the court reasoned that the most legally sound approach was to remand the proceedings to the Trial Court for the limited purpose of recording evidence pertaining to the birth certificate

The court emphasized that this remand is restrictive; it prevents parties from reopening the entire case or leading evidence on unrelated issues, ensuring the scope remains confined to the authenticity of the newly admitted document

The court framed a specific issue for determination: "Whether the applicants prove the birth certificate issued by the Sub-Registrar (Birth and Death) Bhuj Nagarpalika?"

The Trial Court was directed to record evidence solely on this issue and pronounce a fresh judgment on merits within three months, without being influenced by previous findings

The Second Appeal was disposed of accordingly