📘 CIVIL PROCEDURE CODE : ORDER XLI

Preparation for RJS, DJS, PCS (J) and other Judicial Service exams

⚖️ CIVIL PROCEDURE CODE EXPLAINED

The Civil Procedure Code forms the bedrock of any and every Judicial Service exam in the country. Its thorough knowledge is a must for all aspirants of RJS, DJS, PCS (J) and every other Judicial Service exam.

To help such aspirants DELHI LAW ACADEMY JAIPUR has launched a series of study material modules on all important aspects of this vital part of their syllabus:

📑 ORDER XLI    APPEALS FROM ORIGINAL DECREES

📝 Form of appeal

• Every appeal shall be preferred
  • in the form of a memorandum signed by the appellant or his pleader
• The memorandum shall be accompanied
  • by a copy of the judgment
• The memorandum shall set forth
  • concisely and under distinct heads
  • the grounds of objection to the decree appealed from without any argument or narrative and
  • such grounds shall be numbered consecutively

• Where appeal is against a decree for payment of money:
• the appellant shall deposit
  • the amount disputed in appeal or furnish security in respect thereof

❌ Rejection or amendment

• Where the memorandum of appeal
  • is not drawn up in the said manner
• it may be
  • rejected or returned to the appellant for being amended

⏳ Condonation of delay

• When an appeal is presented
  • after expiry of the period of limitation
• it shall be accompanied by an application
  • supported by an affidavit
  • setting forth facts to satisfy the Court that he had sufficient cause for not preferring the appeal within time

🛑 Stay of execution

• Where an application is made
  • for stay of execution of an appealable decree before expiration of the time allowed for appealing
• the Court which passed the decree
  • may on sufficient cause being shown, order the execution to be stayed

📂 Production of additional evidence in Appellate Court

• Parties to an appeal
  • shall not be entitled to produce additional evidence in Appellate Court
  • whether oral or documentary
• but, the appellate Court may allow
  • such evidence or document to be produced or
  • such witness to be examined

(a)

• if the Court from whose decree the appeal is preferred
  • had refused to admit evidence which ought to have been admitted

(aa)

• if the party seeking to produce additional evidence
• establishes that
  • such evidence was not within his knowledge
  • notwithstanding exercise of due diligence or
  • such evidence could not be produced at the time when decree was passed
  • even after exercise of due diligence

(b)

• if 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
• Wherever additional evidence
  • is allowed to be produced by an Appellate Court
• Court shall record reasons for its admission

📝 Explanatory Notes by DLA on Additional Evidence

• The general rule is that an appellate court shall decide an appeal on the evidence led by the parties before the lower Court and shall not admit additional evidence for the purpose of disposal of an appeal.
• The discretion given to the Appellate Court to receive and admit additional evidence is not arbitrary but is judicial one circumscribed by the limitations specified in Rule 27 itself.

📌 Significance of the term “if the Appellate Court requires”:

• Provisions of Section 107 as elucidated by Order XLI Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak pans of his case and fill up omissions in the Court of appeal.
• Under Rule 27, Clause (1) (b) it is only where, the Appellate Court “requires” it (i.e. finds it needful) that additional evidence can be admitted.
• It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it.
• The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.

Authority: Parsotim Thakur v. Lal Mohar Thakur [1931 PC]

📌 Significance of the term “for any other substantial cause”:

• There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is, and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner.
• Such a case will be one for allowing additional evidence for any other substantial cause under Rule 27 (1) (b) of the Code. Such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence.

Authority: K. Venkataramiah v. Seetharama Reddy

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