Additional evidence can be allowed at Appeal if applicant satisfies basic requirements of rule and even no evidence has been led by applicant at trial

Delhi High Court in the case of Banwari Vs. Nagina, where the Court held as under:–

“The concept of additional evidence has been given wider dimension in the recent judgment of Hon’ble Apex Court in Jaipur Development Authority Vs. Smt. Kailashwati Devi [AIR 1997 SC 3243], where the Court held that additional evidence could be allowed even at the Appellate stage under Rule 27(aa) of Order 41, C.P.C. if the applicant satisfies the basic requirements of the rule and even no evidence has been led by the applicant at the trial stage. In that case ex pane decree was passed against the defendant in the suit, the appeal was preferred before the High Court and two documents were sought to be filed which were in possession of the defendant relating to possession of the suit property. High Court rejected the saidprayer, but the same was allowed by Hon’ble Apex Court.

The cumulative effect of the above well enunciated provisions governing the subject is that the Court has to exercise its jurisdiction to derive balance between ends of justice and extent of default of the applicant. The powers given to the Court under Sub-rule (4) of Rule 2 of Order 18 cannot be curtailed by reading the provisions Of Rule 17-A of the same order. Both these provisions must be read and construed harmoniously so as to further cause of justice and necessary for effective and complete adjudication of rival contentions raised by the parties in a suit or proceedings. The procedural law must be moulded to further cause of justice rather than frustrate the same. Non-production of documents after exercise of due diligence appears to be very foundation of filing such an application. Compliance of this condition must be seen in context to the facts and circumstances of the case and in conformity with the record before the Court. Exercise of due diligence would have to give wider and meaningful connotation which must be in conformity with the basic rule of law. In some cases negligence of a party or counsel may not really have the effect of rendering such an application untenable. This view finds support from the case of Jaipur Development Authority (Supra).

Reference can also be made to recent judgment of this Court in the case of Malkiat Singh v. Suit. Hardip Kaur alias Malkial Kaur 1998 (1) All 165 where the Court held as under:–

“I am of the opinion that in fact this application has been filed u/O. 18, Rule 17-A, C.P.C. and even the impugned order itself shows that the application was u/O. 18, Rule 17-A, C.P.C. and not u/O. 18, Rule 17, C.P.C. As regards the maintainability of the application, I am of the opinion that such a prayer can be allowed in the interest of’justice and keeping in view the facts andcircumstanccs of this case the application has been correctly allowed by the trial Court. The view 1 have taken finds full support from a judgment of this Court in Shera v. Asha Ram, 1987 PLJ 278. This judgment has relied on an earlier decision of this Court in Om Parkash Vs. Sarupa and Others, .”

Such a power to recall a witness for further examination is specifically vested in the Court and can be exercised in the facts and circumstances of this case. The provisions of Order 18, Rule 2, Sub-rule (4) and Section 151, C.P.C. can always come to aid and rescue of the applicant.