Additional evidence in appeal cannot be refused merely because no evidence was led at trial, under Order 41 Rule 27.

Order 41 Rule 27 of the Code of Civil Procedure permits additional evidence in appeal where the applicant shows due diligence and explains why the evidence was not within knowledge or could not be produced at trial. The provision does not add a further bar requiring the party to have led some evidence in the trial court. Reading such a condition into the rule would impose a restriction not found in the statutory text and would improperly distinguish between parties who adduced some evidence and those who adduced none. A party is therefore not disqualified from seeking additional evidence in appeal merely because no evidence was led at trial.

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Issues: Whether a party who led no evidence in the trial court is barred from seeking permission to produce additional evidence in appeal under Order 41 Rule 27 of the Code of Civil Procedure, 1908.

Analysis: The provision permits additional evidence in appeal where the party establishes that, despite due diligence, the evidence was not within its knowledge or could not be produced at the trial stage. The text of the rule does not impose any further condition that the applicant must have led some evidence in the trial court. Reading such a requirement into the rule would add a restriction not found in the statutory language and would wrongly distinguish between parties who adduced some evidence below and those who adduced none.

Conclusion: A party is not disqualified from invoking Order 41 Rule 27 merely because it led no evidence in the trial court; the objection to maintainability was therefore rejected in favour of the appellant.

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