In a recent judgment delivered by the Supreme Court of India viz. Akhilesh Singh vs. Lal Babu Singh and Others, the Apex Court has held that it is necessary for the Court to give an opportunity to the opposite side for rebuttal, whenever an applicant is allowed to place additional evidence on record, at the stage of appeal. Though there is no specific provision in the Code of Civil Procedure, the Apex Court found support from the provisions of Order LXI Rule 2 which reads as under:
Grounds which may be taken in appeal.-The Appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the appellate court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by-leave of the court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.
Order LXI Rule 2 provides that the Appellant shall not, except by leave of the court, be allowed to urge any ground in the appeal, which is not set forth in the memorandum of appeal. The proviso to Order LXI Rule 2engrafts a rule, which obliged the Court to grant a sufficient opportunity to the contesting party, if any new ground is allowed to be urged by another party, which may affect the contesting party. The provision engrafts Rule of natural justice and fair play that contesting party should be given opportunity to meet any new ground sought to be urged. When Appellate Court admits the additional evidence Under Order LXI Rule 27, there is no reason for not following the same course of granting an opportunity to the contesting party, which may be affected by acceptance of additional evidence.
In the present case, additional evidence, which were brought on the record were registered sale deeds, which were executed by Appellant and his other co-sharers and what was relied before the High Court was that the Appellant admitted in the sale deeds that the partition has been taken place in the family. The main issue in the First Appeal before the High Court was as to whether the finding of the trial court that no partition by metes and bounds taken place in the family is correct or not. The additional evidence which was admitted has been relied by the High Court while allowing the appeal. It was in the interest of justice that High Court ought to have allowed opportunity to the Plaintiffs, who were Respondents to the First Appeal to either lead an evidence in rebuttal or to explain the alleged admissions as relied by the Defendants. The mere fact that no counter affidavit was filed to the I.A.s was not decisive. Since I.A.s having not been admitted, occasion for counter affidavit did not arise at any earlier point of time. The High Court on the same day, i.e. 08.03.2017 has allowed the I.A.s as well as the First Appeal. The fact that contesting Respondents to the First Appeal, who are Appellant before us were not represented at the time of hearing of the First Appeal, was not a reason for not giving opportunity to them to lead evidence in rebuttal.
A three-Judge Bench in Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah and Ors., (1976) 4 SCC 9 had occasion to consider Order LXI Rule 27in context of admission of additional evidence by Appellate Court. This Court had observed that in event the High Court admits an additional evidence, an opportunity should have been given to the other party to rebut any inference arising from its existence by leading evidence.
To the same effect is another judgment of the Apex Court in the case of Shalimar Chemical Works Limited v. Surendra Oil and Dal Mills (Refineries) and Ors., (2010) 8 SCC 423. In this case also, the Court had occasion to consider Order LXI Rule 27, wherein the Court has again laid down that when documents are taken in additional evidence, an opportunity ought to have been given to other party to lead evidence in rebuttal.