Affidavit for Additional Evidence in Appeal under Order XLI Rule 27 CPC
This page provides a practical affidavit format to support an application for production of additional evidence before an appellate court under Order XLI Rule 27 of the Code of Civil Procedure, 1908. The format should be adapted to the facts, pleadings, documents and procedural rules applicable to the court concerned.
What is Order XLI Rule 27 of the Code of Civil Procedure?
Order XLI deals with appeals from original decrees. Rule 27 governs the production of additional oral or documentary evidence in the appellate court. Its starting point is restrictive: a party to an appeal is ordinarily expected to rely on the evidentiary record made before the trial court. Additional evidence can be received only when the statutory conditions are satisfied.
The rule is intended to balance two principles. First, an appeal should not become a fresh trial merely because a party later discovers that its earlier evidence was insufficient. Second, the appellate court must retain power to receive material that is legally justified and genuinely necessary for a proper adjudication.
When can additional evidence be allowed in appeal?
Order XLI Rule 27(1) recognises three principal situations:
- Evidence wrongly refused by the trial court: the court from whose decree the appeal is preferred refused evidence that ought to have been admitted.
- Due diligence: despite due diligence, the evidence was not within the applicant's knowledge or could not be produced when the decree under appeal was passed.
- Requirement of the appellate court or other substantial cause: the appellate court requires a document or witness to enable it to pronounce judgment, or considers admission necessary for another substantial cause recognised by law.
Where additional evidence is admitted, Rule 27(2) requires the appellate court to record the reason for its admission. The affidavit supporting the application should therefore state the relevant facts precisely and should not merely repeat the language of the rule.
Sample Affidavit for Application to Produce Additional Evidence in Appeal
The following sample retains the substance of the original format while correcting grammar and making the factual averments clearer. Replace every blank with the actual case details and modify the paragraphs to match the ground invoked under Order XLI Rule 27.
IN THE COURT OF ______________________________
INTERLOCUTORY APPLICATION NO. ____ OF 20__
IN
CIVIL APPEAL NO. ____ OF 20__
IN THE MATTER OF:
VERSUS
AFFIDAVIT
I, ______________________________, aged about ____ years, son/daughter/wife of ______________________________, resident of ______________________________, do hereby solemnly affirm and state as follows:
1. That I am the applicant in the accompanying application and the appellant in the above appeal. I am well acquainted with the facts and circumstances of the case and am competent to swear this affidavit.
2. That the above appeal has been preferred against the judgment and decree dated __________ passed by the Court of ______________________________ in Original Suit No. ____ of 20__.
3. That the applicant seeks permission to produce the following additional evidence/documents: ______________________________.
4. That despite exercise of due diligence, the said evidence was not within the knowledge of the applicant and/or could not be produced before the court below at the time when the decree appealed against was passed, for the following reasons: ______________________________.
5. That the applicant first came to know of the said evidence/document on __________ in the following circumstances: ______________________________. Immediately thereafter, the applicant took steps to obtain the same by ______________________________ and obtained it on __________.
6. That the earlier non-production of the said evidence was not deliberate and was not due to wilful default, neglect or an attempt to fill a lacuna in the case.
7. That the proposed evidence is relevant to the issues arising in the appeal, particularly ______________________________, and is material for a just adjudication of the controversy.
8. That admission of the said evidence will not cause unfair prejudice to the respondent, who may be granted an appropriate opportunity to meet the evidence in accordance with law.
9. That, in the facts stated above, the accompanying application deserves to be allowed in the interest of justice and the additional evidence may be taken on record subject to such terms as this Hon'ble Court may consider appropriate.
DEPONENT
VERIFICATION
I, ______________________________, the deponent above named, verify that the contents of paragraphs 1 to ____ of this affidavit are true and correct to my knowledge, the contents of paragraphs ____ to ____ are based on records/information believed by me to be true, and nothing material has been concealed therefrom.
Verified at __________________ on this ____ day of __________, 20__.
DEPONENT
Important drafting points for an Order XLI Rule 27 application
- Identify the exact clause of Rule 27(1) relied upon: clause (a), clause (aa), or clause (b), as applicable.
- Describe each document or item of evidence specifically rather than referring generally to "additional documents".
- Where due diligence is invoked, state dates, efforts made, correspondence or applications submitted, and the reason the evidence could not earlier be produced.
- Connect the additional evidence to an existing issue or pleaded case. Additional evidence ordinarily should not be used to introduce an entirely new factual case in appeal.
- Explain why the evidence is material to the proper decision of the appeal and why its reception would advance, rather than delay, the adjudication.
- Annex legible copies and follow the filing, pagination, certification, translation and affidavit rules of the appellate court concerned.
Recent Supreme Court guidance on Order XLI Rule 27
Gobind Singh and Others v. Union of India and Others, 2026 INSC 211, decided on 9 March 2026: the Supreme Court reiterated that a party has no vested right to produce additional evidence at the appellate stage. The power is discretionary and is confined to the situations recognised by Rule 27. It is not meant to allow a party to fill gaps in its evidence at leisure.
Procedural treatment of the application: recent Supreme Court authority has also emphasised that an application under Order XLI Rule 27 should be addressed on its merits in the context of the main appeal, because the appellate court must assess whether the proposed material is required for deciding the appeal or otherwise falls within the statutory conditions.
The precise result of an application depends on the facts, the pleadings, the reason for earlier non-production, the relevance of the evidence, and the procedural law applicable to the particular appellate proceeding.
Frequently asked questions
Is additional evidence in appeal an automatic right?
No. Rule 27 begins with the general rule that parties are not entitled to produce additional evidence in appeal. The applicant must satisfy one of the statutory grounds.
Is an affidavit compulsory in every case?
Court rules and local practice should be checked. As a matter of sound pleading, factual assertions concerning due diligence, later discovery of documents, or the circumstances of non-production should ordinarily be supported by a properly sworn affidavit where required.
Can Rule 27 be used merely because the earlier evidence was weak?
No. The provision is not intended to give a party a second opportunity simply to repair evidentiary deficiencies. The applicant should establish the applicable statutory condition and the genuine relevance of the proposed evidence.
Official legal and court resources
For the current statutory text and court information, use the official sources linked in the sidebar. Because procedural requirements can differ between courts and may be affected by local amendments or rules, the filing format should be checked against the practice of the court in which the appeal is pending.