SATISH CHAND SURANAversusRAJ KUMAR MESHRAM

586                       [2021]
               SUPREME COURT     9 S.C.R. 586
                              REPORTS                         [2021] 9 S.C.R.


A                          SATISH CHAND SURANA
                                          v.
                            RAJ KUMAR MESHRAM
                          (Civil Appeal No. 7446 of 2021)
B                              DECEMBER 06, 2021
           [S. ABDUL NAZEER AND KRISHNA MURARI, JJ.]
             Code of Civil Procedure, 1908 – Or.XLI, r.27 and s.107 –
      Dismissal of main appeal by First Appellate Court without deciding
      application for additional evidence – Held: Not proper – Ordinarily,
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      the Appellate Court should not travel beyond the record of the lower
      court – s.107 CPC carves out an exception to this general rule,
      enabling the Appellate Court to take additional evidence subject to
      conditions prescribed in Or.XLI, r.27 CPC – Thus, grant or refusal
      of opportunity for production of additional evidence at the appellate
D     stage is within the discretion of the appellate court – The First
      Appellate court, being the last court of facts and evidence, should
      permit the production of additional evidence where the explanation
      furnished by the party is satisfactory and the documents in question
      are vital to establish the case.
E           CIVIL APPELLATE JURISDICTION : Civil Appeal No.7446
      of 2021.
            From the Judgment and Order dated 20.06.2019 of the High Court
      of Chhattisgarh at Bilaspur in FA No.433 of 2018.
            Ashutosh Ghade, Ms. Manju Jetley, Advs. for the Appellant.
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            The following Order of the Court was passed:
                                      ORDER
            Leave granted.
            (2) The appellant herein was the plaintiff in Civil Suit No.30A/
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      2017 on the file of the First Additional District Judge, Balode, and the
      respondent was the defendant. The parties are referred to by their
      respective ranking before the Trial Court.
           (3) The plaintiff filed the said suit for specific performance of the
      Agreement dated 26.08.2015 said to have been executed by the defendant
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                                         586
     SATISH CHAND SURANA v. RAJ KUMAR MESHRAM                                    587


in favour of the plaintiff for sale of property No.395 and 396/1 having          A
area 0.59 hectare and 0.05 hectare respectively, totally measuring 0.64
Hectare situated at Village Jagtara, Patwari Halka No.22, Balode. The
suit was proceeded ex-parte. On appreciation of the materials placed
on record, the Trial Court dismissed the suit.
       (4) The plaintiff filed an appeal, F.A. No.433 of 2018 before the         B
High Court of Chhattisgarh challenging the aforesaid judgment. During
the pendency of the appeal, the plaintiff filed an application under Order
41 Rule 27 of the Code of Civil Procedure (for short, ‘CPC’) for
production of additional evidence. The High Court dismissed the appeal
by the impugned judgment, without considering the said application. The
plaintiff has challenged the legality and correctness of the judgment of         C
the High Court in this appeal.
      (5) Though notice was served on the respondent/defendant but
no one has entered appearance on his behalf.
      (6) Heard learned counsel for the appellant and perused the                D
materials placed on record.
       (7) Learned counsel for the appellant-plaintiff submits that the
High Court has dismissed the first appeal of the plaintiff without deciding
the application filed by him under Order XLI Rule 27 of the CPC, seeking
permission to adduce the additional evidence. Learned Counsel further            E
submits that the appellant has a good case on merits.
       (8) It is well-settled that, ordinarily, the Appellate Court should not
travel beyond the record of the lower court. Section 107 of the CPC
carves out an exception to this general rule, enabling the Appellate Court
to take additional evidence subject to the conditions prescribed in Order        F
41 Rule 27 of the CPC. Thus, grant or refusal of the opportunity for
production of additional evidence at the appellate stage is within the
discretion of the appellate court. Dismissal of the main appeal without
deciding the application for additional evidence would result in miscarriage
of justice. The First Appellate court, being the last court of facts and
evidence, should permit the production of additional evidence where the          G
explanation furnished by the party is satisfactory and the documents in
question are vital to establish the case.
      (9) It is also necessary to observe here that the application for
permission to file additional evidence should contain the list of documents
giving full particulars thereof and copies sought to be filed as additional      H
588             SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     evidence should be served on the other side. However, the High Court
      cannot completely ignore the application filed by the appellant and
      pronounce the judgment. If the appellant makes out a case for allowing
      the application, the material produced along with the application has to
      be considered at the time of final disposal of the appeal in accordance
      with law.
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             (10) In the instant appeal, it is clear that the High Court has
      proceeded to dismiss the appeal without considering the application filed
      by the appellant-plaintiff. In our view, the High Court has to consider the
      matter afresh in the light of the observations made above.
C            (11) In the result, the appeal succeeds and is accordingly allowed
      in part. The judgment of the High Court impugned herein is set aside.
      The matter is remitted back to the High Court for fresh disposal in
      accordance with law and in view of the observations made above.
             (12) Pending application(s), if any, shall stands disposed of. There
D     will be no order as to costs.

      Bibhuti Bhushan Bose                                   Appeal partly allowed.




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