More evidence can be allowed in appeal

Typically, all the evidence has to be laid before the court when the case is initially filed and tried. In an appeal, the appellate court usually evaluates whether the lower court has appreciated the evidence properly or not and whether the law has been interpreted correctly. As a rule, additional evidence is not permitted to be produced in appeal. The question whether it could be allowed in certain circumstances was examined recently. 

Advocate Shekhar Prabhavalkar contended that it would not be desirable to take a procedurally technical view, which would deprive a party from producing evidence in its favour. Consumer fora are required to observe the principles of natural justice and are not bound to follow the strict rules of the Civil Procedure Code. He stated that when a party satisfactorily explains why he could not produce the evidence earlier, he should be permitted to file the additional evidence later. He added that a procedure that comes in the way of rendering justice should be given the go by.

The National Commission constituted a unique five-member bench, headed by its President, Justice R K Agrawal, a retired Supreme Court judge. The bench observed that even under the Civil Procedure Code, a party was allowed to produce additional evidence at the appellate stage, as ruled by the Supreme Court in Jiten Ajmera versus Tejas Co-operative Housing Society. The only requirement was that the party seeking to file additional evidence in appeal proceedings would have to establish it had exercised due diligence but was still unable to produce the evidence on record. The discretion to allow evidence at a later stage could be used when a party did not know of the existence of some document or evidence, or those documents were subsequently made available. The Commission observed that the principles laid down by the Supreme Court for allowing additional evidence at the appellate stage would also apply to consumer cases as the Consumer Protection Act did prohibit the filing of further evidence during the appeal.

The Commission noted that the documents, which were sought to be produced were a subsequent communication sent by the local authority, giving the reason for refusal to issue the occupancy certificate. Since this document was not available earlier but had a material bearing, the Commission held it was necessary to allow its production.

By its order of January 21, 2020, delivered by Justice R K Agrawal, the National Commission clarified that in normal circumstances additional evidence could not be filed in an appeal. Still, in exceptional circumstances, it would be permissible to make a departure from the general rule and allow additional evidence in appeal.

The writer is a consumer activist