S.K.Mookherjee, J. - (1.) I had the advantage of going through the judgment of my learned brother Chakravarty, I., I respectfully agree with his conclusions but would like to express my own reasons.
(2.) In a suit inter alia for declaration a question arose as to whether the defendant was full brother of the plaintiff. On the basis of documents and oral evidence, including the death certificate of the plaintiff's mother and school certificate of the defendant embodying entry about his year of birth, the Trial Court came to the conclusion that the defendant was the full brother of the plaintiff. Admittedly the father of the defendant had a second marriage and the allegation of the plaintiff was that the defendant was the son by the second wife. Against the decree of dismissal an appeal was preferred before the Lower Appellate Court and in connection with the said appeal an application under Order 41, Rule 27 of the Code of Civil Procedure was filed by the plaintiff for introduction of the birth certificate of the defendant as additional evidence to show that the first wife of the father of the plaintiff and tire defendant died prior to the birth of the defendant. The reasons for failure to produce such evidence before the Trial Court was pleaded to be non-availability of the said document in spite of diligence by the plaintiff. The other ground was that such document was needed for cause of justice and for enabling the Court to pronounce judgement. By the impugned Order the Lower Appellate Court having rejected the application, the present revisional application had been preferred.
(3.) From the analysis of the provisions of Order 41, Rule 27 of the Code of Civil Procedure, the following principles emerge :- (i) Production of additional evidence at the appellate stage is generally prohibited. (ii) The previsions apply to both oral and documentary evidence. (iii) Clauses (a) and (aa) may be invoked by a party to the appeal. Clause (b) can be invoked by the Appellate Court alone and not by tire parties. (iv) Liberty given by or permission granted by it enables a party to produce oral or documentary evidence but does not dispense with the requirement to prove the same in conformity with the Evidence Act. In other words, till the document or oral evidence is proved or established according to law, the Court cannot consider the same for the purpose of adjudication.;