Civil Procedure Code, 1908 / Order XLI / Rule 28

Order XLI Rule 28 CPC - Mode of Taking Additional Evidence

Order 41 Rule 28 of the Code of Civil Procedure, 1908 explains who may record additional evidence in a civil appeal after the appellate court permits its production. The rule enables the appellate court to record that evidence itself or have it recorded by the trial court or another subordinate court.

Text of Order XLI Rule 28 CPC

Rule 28 - Mode of taking additional evidence

Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.

Official source: India Code - Code of Civil Procedure, 1908; official CPC text (PDF).

Meaning and scope of Rule 28

Rule 28 is a procedural provision. It does not independently create a right to submit fresh documents or examine new witnesses in appeal. Admission of additional evidence is governed by Order XLI Rule 27. Once the appellate court allows additional evidence, Rule 28 determines how and where it will be taken.

Two methods of recording evidence

  1. By the appellate court: The appellate court may itself receive documents or record the testimony of witnesses, subject to applicable evidentiary and procedural rules.
  2. By another court: It may direct the court whose decree is under appeal, or another subordinate court, to record the specified evidence and transmit the resulting record to the appellate court.

The decision to use either method rests with the appellate court. A direction to a subordinate court to take evidence under Rule 28 does not, by itself, transfer the final decision of the appeal to that court.

Order XLI Rule 27 - When additional evidence may be admitted

Ordinarily, parties cannot introduce new oral or documentary evidence at the appellate stage. Rule 27(1) provides limited exceptions, including wrongful refusal of evidence by the trial court, inability to produce evidence despite due diligence, and evidence required by the appellate court to pronounce judgment or for another substantial cause. Under Rule 27(2), the appellate court must record its reasons for admitting the evidence.

Order XLI Rule 28 - Who records the evidence

After admission, the appellate court chooses whether to take the evidence itself or direct the trial court or another subordinate court to do so and send it back.

Order XLI Rule 29 - What points the evidence may address

When additional evidence is directed or allowed, Rule 29 requires the appellate court to specify and record the points to which that evidence must be confined. This keeps the exercise focused on the matters for which additional evidence was permitted.

Practical procedure in a civil appeal

  1. A party seeking additional evidence ordinarily makes an application explaining how Rule 27 is satisfied; the appellate court may also identify a need for evidence under that rule.
  2. The appellate court considers whether an exception under Rule 27 applies and records reasons if it admits additional evidence.
  3. It identifies the points to which the additional evidence is confined under Rule 29.
  4. Under Rule 28, it records the evidence itself or directs an appropriate subordinate court to record and return it.
  5. The appellate court considers the additional evidence with the appeal record, after providing the parties an appropriate opportunity to address it, and determines the appeal according to law.

Illustrative example

Suppose a document material to an appeal could not have been produced at trial despite due diligence. If the appellate court is satisfied that Rule 27(1)(aa) applies, it may admit the document and record reasons. It can then receive proof of the document itself or ask the trial court to record relevant evidence and forward the record. Under Rule 29, it must identify the specific points on which evidence is being taken.

Frequently asked questions

Can a party submit new evidence as of right in a first appeal?

No. Order XLI Rule 27 makes additional evidence exceptional and subject to the grounds specified in that rule.

Can the trial court record evidence after an appeal has been filed?

Yes, where the appellate court directs it under Rule 28. The court recording evidence sends it to the appellate court for consideration in the appeal.

Must the appellate court specify the issues for additional evidence?

Rule 29 requires the appellate court to specify and record the points to which the additional evidence is confined.

Is recording additional evidence the same as remanding the entire case?

No. Taking limited additional evidence under Rule 28 is distinct from remanding a case under Order XLI Rules 23 or 23A. The nature and effect of the appellate court's order must be considered.

Legal references

Read the Code of Civil Procedure guide, Rule 27 on admission of additional evidence and Rule 29 on specified points. For the governing statutory text, consult the India Code publication. Court-specific amendments and procedural rules should also be checked where applicable.

This article explains the general provisions of the Code of Civil Procedure, 1908 and is not a substitute for case-specific legal advice.