Additional evidence and pleadings amendments in second appeal must be decided on statutory tests, not rejected on maintainability misconceptions.

An appellate court must first decide a pending request for additional evidence before disposing of a second appeal where the material may materially affect the controversy. Additional evidence under Section 107 and Order 41 Rule 27 CPC is confined to recognised statutory grounds, including where it is required to pronounce judgment or for substantial cause, and cannot be used to fill lacunae. Amendments under Order 6 Rule 17 CPC should be considered on their merits if necessary to determine the real controversy and if they do not cause injustice to the other side. The High Court erred in rejecting the applications on a mistaken view of maintainability, the orders were set aside, and the matter was remitted for fresh consideration.

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Issues: (i) Whether the High Court erred in dismissing the second appeal and in failing to consider the applications for additional evidence and amendment of pleadings; (ii) what principles govern the exercise of power to admit additional evidence and permit amendment of pleadings in second appeal.

Issue (i): Whether the High Court erred in dismissing the second appeal and in failing to consider the applications for additional evidence and amendment of pleadings.

Analysis: The appellate court is required to deal with a pending application for additional evidence before deciding the appeal when the materials sought to be brought on record may have a material bearing on the controversy. The High Court did not advert to the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 and rejected the amendment application on an incorrect assumption that it could not be entertained in second appeal. The documents placed before the court were prima facie capable of affecting the core question whether the decree was vitiated by fraud and whether the plaintiff's title and possession were liable to be re-examined.

Conclusion: The High Court's approach was erroneous and the impugned orders could not be sustained.

Issue (ii): What principles govern the exercise of power to admit additional evidence and permit amendment of pleadings in second appeal.

Analysis: Additional evidence may be admitted under Section 107 and Order 41 Rule 27 of the Code of Civil Procedure, 1908 only in the situations recognised by the rule, including where the appellate court requires it to pronounce judgment or for other substantial cause. Such power is not meant to enable a party to fill lacunae, but it may be exercised where the record reveals an inherent defect or where justice requires the obscurity to be cleared. Amendments under Order 6 Rule 17 of the Code of Civil Procedure, 1908 are to be allowed if they do not cause injustice to the other side and are necessary to determine the real controversy.

Conclusion: The applications had to be considered on their merits in accordance with the settled principles and not rejected on a mistaken view of maintainability.

Final Conclusion: The appeal succeeded, the impugned orders were set aside, and the matter was remitted to the High Court for fresh consideration of the pending applications and thereafter of the second appeal on merits.

Ratio Decidendi: An appellate court must decide an application for additional evidence and an amendment application on the governing statutory tests and cannot refuse consideration on a wrong view of maintainability where the materials may materially affect the decision of the appeal.

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