Pramod Kumar Srivastava, J.@mdashHeard the learned counsel for the appellant.
2. The two courts below had given concurrent findings of fact against the claim of plaintiff-appellant of being owner in possession of disputed property in suit filed for the relief of permanent injunction. Against said judgments present second appeal has been preferred.
3. Second appeal has not been admitted. With memorandum of Second Appeal the appellants have filed application with request that documentary evidences annexed with accompanying affidavit may be accepted as evidence for disposal of the second appeal.
4. Order 41 Rule 27 CPC reads as under:
"27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
5. Discussing the provisions of Order 41 Rule 27 CPC the Apex Court held in
"Stage of consideration
49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court.
- - - -
52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored."
6. In present matter appellant had filed the memorandum of second appeal and thereafter simultaneously moved application under for admitting the documentary, before the admission of appeal or even before hearing on point of admission. Therefore such application under Order 41 Rule 27 CPC cannot be allowed before admission of appeal or before initiation of hearing of appeal.
7. The learned counsel for the appellant had contended that documentary evidences were available with appellant but could not be presented in before the trial or first appellate court. Had these evidences were filed in the lower court their judgments would have been in appellant''s favour. He argued that these evidences should be admitted for just decision. In Union of India v. Ibrahim Uddin (supra) Apex Court had also held:
"Order 41 Rule 27 CPC
36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself.
37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment.
38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence.
39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal.
47. - - -
48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage."
8. Admittedly the documents filed by appellants are for presenting those evidences which were allegedly necessary for discharging his burden of proof in lower court. In other words these documentary evidences only for removing the lacuna in the evidence adduced in trial court. It is not the business of the appellate court to supplement the evidence adduced by any party. Said evidences were available with appellants but were not filed knowingly. Such evidences cannot be accepted in appeal under Order 41 Rule 27 CPC.
9. The learned counsel for the appellant had contended that although the documentary evidences in question were within the knowledge of appellant but it was due to incorrect legal advice the same could not be filed in the lower courts. The legal advice given by a counsel to a litigant is a privileged communication. Section 129 of Indian Evidence Act deals with the ''Confidential communications with legal advisers''. It provides that "No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and his legal professional adviser". No affidavit or evidence of fact is there to prove that any such advice was in fact given to appellant. Apart from it the evidence in appeal can be admitted only on the three grounds mentioned in Rule-27 of Order 41 CPC. This provision does not contain the ground of erroneous legal advice given by a counsel to a litigant. Therefore evidence cannot be admitted in appeal on ground that earlier before in lower court appeal the evidence could not be adduced because of wrong legal advice.
10. The original suit was filed for permanent injunction with averment that plaintiff appellant is owner in possession of disputed property of abadi land. The defendants- respondents have no right or title over said property, but they are attempting to illegally interfere in possession of the plaintiff. Therefore the plaintiff had also sought relief of permanent injunction against defendants for restraining them to interfere in peaceful possession and user of said disputed property.
11. The Trial Court found had afforded opportunity of hearing to parties and then dismissed the suit of plaintiff with finding that possession or title of plaintiff is not proved. First appellate Court had confirmed this finding of fact and dismissed the appeal, against which present second appeal is preferred.
12. The Second Appellate Court would not reappreciate the evidences to disturb the concurrent findings of fact recorded by both the courts below.
13. On examination of the reasonings recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate Court are well reasoned, based upon proper appreciation of the entire evidence on record. No question of law much less a substantial question of law was involved in this case before the High Court. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. None of the contentions of the learned counsel for the appellant-plaintiffs can be sustained.
14. In view of the above, this Court finds that no substantial question of law arises in this appeal. The second appeal is dismissed.
