Order 41 Rule 27 CPC Cannot Be Invoked To Fill Lacunae In Evidence If Party Voluntarily Closed Evidence In Trial Court: Delhi High Court

"When the Defendant/Appellant himself had chosen not to examine the three witnesses and had closed his evidence after recording the testimony of himself and DW2, he cannot now claim any inadvertence. Clearly, it is an attempt by the Appellant to fill the lacunae in the evidence, " Delhi High Court, in a decisive ruling, held that an application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedure (CPC) cannot be entertained to fill gaps in a case when the party had voluntarily chosen to close their evidence during the trial.

A bench of Justice Neena Bansal Krishna observed that once a party exercises their choice to stop examining witnesses, they cannot later claim "inadvertence" at the appellate stage to bring new facts on record.

The matter arose from a recovery suit filed by the Respondent (Plaintiff) against the Appellant (Defendant) for a friendly loan of ₹2,00,000 advanced in 2009 via two cheques. While the Trial Court and the First Appellate Court decreed the suit in favor of the Plaintiff, the Defendant moved the High Court in a Regular Second Appeal. The Defendant contended that the money was not a loan but a reimbursement for litigation expenses related to an ancestral property in Bhatinda, Punjab.

The primary question before the court was whether the First Appellate Court erred in law by not adjudicating upon the application under Order 41 Rule 27 CPC for bringing additional documents on record. The court was also called upon to determine if the onus of proof had been wrongly shifted and if the findings of the lower courts warranted interference under Section 100 of the CPC.

Loan Transaction Corroborated By Bank Records and ITR

The Court noted that the Plaintiff had successfully established the advancement of the loan through cogent evidence. The two cheques of ₹1,00,000 each were duly encashed by the Defendant, a fact admitted during cross-examination. Furthermore, the Plaintiff produced his Income Tax Return (ITR) Verification Form for the year 2010-2011, where the loan amount was clearly reflected as an asset in the balance sheet.

ITR Entry Acts As Independent Corroboration Of Debt

The bench emphasized that the entry in the balance sheet appended to the ITR served as significant independent evidence. "In the Balance Sheet appended to the ITR Verification Form, the entry of the loan amount of Rs.2 lakhs as advanced to the Defendant has been clearly reflected in the Assets," the court observed, noting that the Plaintiff’s testimony remained unshaken despite lengthy cross-examination.

Contradictory Defense Regarding Litigation Expenses

The Defendant’s primary plea was that the amount was a partial discharge of the Plaintiff’s liability towards litigation expenses incurred by the Defendant's father. However, the Court found this defense to be "mutually contradictory" and unsupported by the documents produced. Specifically, the document labeled as a "Family Settlement" by the Defendant turned out to be a Sale Deed involving different parties and properties.

Court Rejects Theory of Reimbursement for Legal Costs

The Court highlighted that the Sale Deed cited by the Defendant was executed in 2008, after the death of the Defendant's father, making it impossible for the father to have been a party to the transaction as claimed. "The Defendant was, therefore, unable to establish that the amount of Rs.2 lakhs was towards the share of litigation expenses," the bench noted, adding that the professional fees of the counsel involved in the ancestral property dispute were proved to be significantly lower than the amount claimed by the Defendant.

Scope of Additional Evidence Under Order 41 Rule 27 CPC

Addressing the core legal challenge regarding the application for additional evidence, the Court held that the provisions of Order 41 Rule 27 CPC are not meant to provide a second innings to a negligent litigant. The Appellant had claimed that three witnesses could not be examined before the Trial Court due to inadvertence, but the record showed he had voluntarily closed his evidence.

Order 41 Rule 27 Cannot Remedy Self-Inflicted Lacunae

The High Court affirmed that the appellate power to take additional evidence is discretionary and circumscribed. "There is no merit in this contention of the Appellant seeking an opportunity for examining additional evidence which in fact is only to fill in the lacunae in the evidence," the Court held. It ruled that since the Appellant chose not to examine his witnesses earlier, he could not seek to re-open the evidence at the appellate stage.

No Substantial Question Of Law In Second Appeal

Finally, the Court reiterated the settled principle that a Second Appeal under Section 100 CPC is maintainable only on substantial questions of law. The bench found that the concurrent findings of the Trial Court and the First Appellate Court were based on a thorough appreciation of facts and evidence.

Concurrent Findings Of Fact Cannot Be Disturbed Absent Perversity

The bench concluded that the grounds urged by the Appellant were purely factual in nature and did not meet the threshold for a Second Appeal. "Though the Appellant has sought to project certain substantial questions of law, the grounds urged are purely factual in nature and do not give rise to any substantial question of law," the Judge observed while dismissing the appeal.

The High Court dismissed the Regular Second Appeal, upholding the decree for recovery of ₹2,20,000 with interest. The Court clarified that the Appellant’s attempt to introduce additional evidence was a late-stage effort to rectify trial-level failures, which is legally impermissible under the CPC.

Date of Decision: June 10, 2026