1 2026:HHC:29455 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 44 of 2008 Reserved on: 8.7.2026 Date of Decision: 20.7.2026 State of HP ...Appellant Versus Mangal Dass & ors. ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Appellant/State : Mr Lokender Kutlehria, Additional Advocate General. For the Respondents (except Respondent No.3) : Mr Sanjeev Kuthiala, Senior Advocate, with Ms Tamanna Sharma, Advocate. Respondent No.3 stated to have expired. Rakesh Kainthla, Judge The present appeal is directed against the judgment and decree dated 25.09.2007, passed by the learned Additional District Judge (Fast Track Court), Una, District Una, HP, (learned Appellate Court), vide which the judgment and decree dated 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:29455 30.11.2000, passed by the learned Sub Judge First Class, Court No. II, Amb, District Una (learned Trial Court), were set aside. (The parties shall hereinafter be referred to in the same manner as were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a mandatory injunction directing the defendants to construct a retaining wall to check the soil erosion after the construction of a culvert/bridge on Banne-Di-Hatti Mubarakpur Link Road and recovery of ₹50,000/- as damages on account of the soil erosion. It was asserted that the plaintiff is the owner in possession of the land mentioned in paragraph 1 of the plaint. The defendants Nos. 1 to 3 constructed a link road known as Banne-Di-Hatti -Lower Mubarakpur Abadi Link Road. They constructed a small bridge at Span No. 15 at RD No. 1/397. The plaintiff objected to the construction of the bridge because it would divert the flow of water towards his land, and the defendants assured to construct a retaining wall and spurs to protect the plaintiff's land from soil erosion. However, the defendants failed to honour their promise. The flow of water was diverted through the bridge towards the plaintiff's land. One 3 2026:HHC:29455 kanal of the plaintiff's land was washed away during the rainy season. Plaintiff incurred the expenses of ₹10,000/- for constructing the spurs at his own cost. The washed-away land had fruit-bearing trees worth more than ₹50,000/-. The plaintiff requested the defendants to construct the retaining wall and pay the damages, but in vain. Hence, the suit was filed to seek the relief mentioned above. 3. The suit was opposed by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action, the plaintiff being estopped from filing the present suit by his act and conduct, the suit being bad for non-joinder of necessary parties, and the suit having not been properly valued for court fees and jurisdiction. It was admitted that the plaintiff is the owner-in-possession of the land mentioned in paragraph 1 of the plaint, and a 15 ft. span culvert at RD No.1/397 had been constructed on a road called Banne-Di-Hatti-Lower Mubarakpur Abadi road. It was admitted that the plaintiff's land is located adjacent to the previously flowing flood water and near the culvert. It was asserted that the culvert was constructed on the demand of the local people of the area, parallel to the flow of the water, and there was no fresh 4 2026:HHC:29455 diversion of the flow of the water. No promise was ever made to the plaintiff. No damage was caused to the plaintiff’s land. The suit was filed without any basis. Hence, it was prayed that the same be dismissed. 4. A replication denying the contents of the written statement and affirming those of the plaint was filed. 5. Learned Trial Court framed the following issues on 20.08.1996: - 1. Whether the plaintiff is entitled to the relief of a mandatory injunction as prayed for? OPP. 2. Whether the suit is not maintainable in its present form? OPD. 3. Whether the plaintiff is estopped to file this suit by his acts and conduct? OPD. 4. Whether the suit is barred by the law of limitation? OPD. 5. Whether the plaintiff has no locus standi to file this suit? OPD. 6. Whether the suit is bad for non-joinder of necessary parties? OPD. 7. Whether the suit is not properly valued for the purpose of the court fee and jurisdiction? OPD. 8. Relief. 6. The parties were called upon to produce the evidence, and the plaintiff examined Madan Lal (PW1), Dilbag Singh (PW2), himself (PW3), Surinder Nath (PW4), Achhar Singh (PW5) and 5 2026:HHC:29455 Tarlok Chand (PW6). The defendants examined Satyavrat Sharma (DW1) and Virender Kumar (DW2). 7. Learned Trial Court held that the construction of the culvert was not disputed by the defendants. It was admitted that this culvert was constructed on the Government land. The evidence on record was not sufficient to show that the construction of the culvert diverted the flow of water towards the plaintiff’s land. No expert had assessed the value of the fruit- bearing trees. The Jamabandi showed that land was recorded as Barani Awwal Gair Mumkin Abadi and Cattle Shed. No orchard was described on the plaintiff’s land. The plaintiff’s plea that he had constructed the spurs to protect his land was not corroborated by the testimony of any Mason or labourer. Hence, the learned Trial Court answered Issues No. 1 to 7 in the negative and dismissed the suit filed by the plaintiff. 8. Being aggrieved by the judgment and decree passed by the learned trial Court, the legal representative of the plaintiff filed an appeal, which was decided by the learned Additional District Judge, Una, H.P. (learned Appellate Court). Learned Appellate Court held that the statements of the plaintiff’s witnesses corroborated each other, and that the construction of 6 2026:HHC:29455 the culvert diverted the flow of water towards the plaintiff's land. The witnesses produced by the defendants were not aware of the spot position. The evidence of the Horticulture Inspector would have been a corroborative piece of evidence, and the suit could not have been dismissed in the absence of such evidence. The evidence on record proved that there was soil erosion because of the flow of water. Non-framing of any issue was not material because the parties knew the case that they had to meet. Therefore, the learned Appellate Court allowed the appeal and decreed the suit. 9. Being aggrieved by the judgment and decree passed by the learned Appellate Court, the State has filed the present appeal, which was admitted on the following substantial question of law on 14.03.2008. 1. Whether the Court can decree the suit for damages without examining any expert witness by the parties? 10. Both parties have also filed applications for additional evidence, which are to be considered along with the present appeal. 11. I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State and 7 2026:HHC:29455 Mr. Sanjeev Kuthiala, Learned Senior Advocate, assisted by Ms. Tamanna Sharma, learned counsel for the respondents (except respondent No.3). 12. Mr Lokender Kutlehria, learned Additional Advocate for the appellant/State, submitted that the plaintiff had not produced any evidence to show that he had suffered damages worth ₹50,000/-. There was no evidence of the number of trees existing on the land, their value, their fruit-bearing capacity, their annual yield, or the income generated by them. The plaintiff had also not produced any evidence regarding the expenses incurred by him for the construction of the retaining wall, and the learned Appellate Court decreed the suit without considering all these aspects. Therefore, he prayed that the present appeal be allowed and the judgment and decree passed by the learned Appellate Court be set aside. 13. Mr Sanjeev Kuthiala, learned Senior Advocate for the respondents, submitted that the learned Appellate Court had rightly held that the evidence of the Horticulture Expert would have been corroborative. The Court is not precluded from looking into the other evidence to determine the damages. In the present case, the learned Appellate Court had sufficient material to assess 8 2026:HHC:29455 the damages, and the judgment and decree passed by the learned Appellate Court cannot be said to be bad. Therefore, he prayed that the present appeal be dismissed. 14. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. Additional Evidence: 15. Before averting to the merits of the appeal, it is necessary to dispose of the applications filed by both parties for leading additional evidence. CMP No.18055 of 2025 16. The State has filed the present application for placing on record the additional documents. It has been asserted that some new facts came to the notice of the applicant/defendants during the pendency of the appeal, which could not be brought to the notice of the learned Trial Court and the First Appellate Court. The applicant/defendants raised retaining walls by the side of the plaintiff’s land by spending an amount of ₹2,64,000/-. Adequate protection has been provided to the plaintiff's land, and there is no damage. It is necessary to place on record the documents regarding the construction having been made by the defendants. Hence the application. 9 2026:HHC:29455 17. The application is opposed by filing a reply, making a preliminary submission regarding the lack of maintainability. The contents of the application were denied on the merits. It was asserted that the facts sought to be brought on record are not relevant to adjudicate the dispute pending between the parties. The measurement book does not mention where the work was carried out. The report of the Tehsildar does not mention the protection measures of the plaintiff's land. The award letter does not pertain to the work undertaken by the applicants/defendants for the protection of the plaintiff’s land. The evidence is not necessary; therefore, it was prayed that the application be dismissed. 18. I have heard Mr Lokender Kutlehria, learned Additional Advocate for the applicants and Mr Sanjeev Kuthiala, Learned Senior Advocate, assisted by Ms Tamanna Sharma, learned counsel for the non-applicants. 19. The applicants have not filed any application for amendment of the written statement to incorporate the fact that a retaining wall had been constructed to protect the plaintiff’s land. Therefore, the evidence sought to be led is beyond pleadings. It was laid down by the Hon’ble Supreme Court in 10 2026:HHC:29455 Iqbal Ahmed v. Abdul Shukoor, 2025 SCC OnLine SC 1787, that the additional evidence can only be led if the foundation for the evidence is laid in the pleadings. It was observed: “8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In the absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence, as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal, (2008) 17 SCC 491: AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter, on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out, that such permission can be granted. In the absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence.” 20. It was laid down by the Hon’ble Supreme Court in Hukum Chandra v. Nemi Chand Jain, (2019) 13 SCC 363 = 2018 SCC OnLine SC 2812, that rights and liabilities stand crystallised on 11 2026:HHC:29455 the date of institution of the suit, but the Court can take note of the subsequent events in appropriate cases. It was observed: - “15. The rights of the parties stand crystallised on the date of institution of the suit. However, in appropriate cases, the court can take note of all the subsequent events. Observing that the court may permit subsequent events being introduced into the pleadings by way of the amendment as it would be necessary to do so for the performance of determining the rule in controversy for the parties, provided certain conditions are satisfied, in Om Prakash Gupta v. Ranbir B. Goyal, 2002 2 SCC 256, it was held as under: - "11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has the power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor &General Traders, 1975 1 SCC 770, this Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court, cannot be blinked at. The court may, in such cases, bend the rules of 12 2026:HHC:29455 procedure if no specific provision of law or rule of fair play is violated, for it would promote substantial justice provided that there is an absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J., affirmed the proposition that the court can, so long as the litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decretal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed." 16. The normal rule is that in any litigation, the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever there are subsequent events of fact or law, which have a material bearing on the rights of the parties to relief or the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognisance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram, 1992 Supp2 SCC 623)” 21. Therefore, the Court has to determine the rights and liabilities as they existed on the date of the institution of the suit, and the subsequent events cannot be looked into unless they are brought on record as per the law. In the present case, the subsequent events have not been brought on record by 13 2026:HHC:29455 amendment, and it is not permissible to admit the evidence sought to be led by the State. 22. In view of the above, the present application fails and is dismissed. 23. The application stands disposed of. CMP No. 10743 of 2025 24. The present application has been filed by the applicants/plaintiffs for placing on record certain documents. It has been asserted that the plaintiff’s land is still suffering from soil erosion. A copy of Misal Hakiyat Bandobast showing the ownership and possession of the respondents, Aks Shajra, the certificate issued by Pradhan, and the photographs are required to be placed on record to establish this fact. The documents are recent, and they comprise certified copies of the public document. Therefore, it was prayed that the present application be allowed. 25. No reply to the application was filed. 26. I have heard Mr Sanjeev Kuthiala, learned Senior Advocate for the applicants and Mr Lokender Kutlehria, learned Additional Advocate for the non-applicant/State and have gone through the records carefully. 14 2026:HHC:29455 27. The applicants are seeking to place on record the copy of Misal Hakiyat for the year 1990-1991 and Aka Shajra Kishatwar Bandobast. These two documents came into existence much before the filing of the suit. The applicants could have obtained the certified copies of these documents and placed them on record before the learned Trial Court or the learned Appellate Court. No reason has been assigned as to why these documents were not earlier placed on record. 28. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC 76: (2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821, that where no explanation was provided for the non-production of the documents, they cannot be taken on record. It was observed at page 81: “13. At this stage, it would be pertinent to point out that the appellant-defendants, during the course of this appeal, have filed a number of applications to place on record certain documents which were not on the record of the trial court. No explanation has been given in any of these applications as to why these documents were not filed in the trial court. These documents cannot be looked into and entertained at this stage. The defendants did not file these documents before the trial court. No application was filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908, for leading additional evidence before the first appellate court or even before the High Court. Even the applications filed before us do not set out any reasons for not filing these documents earlier, and do not 15 2026:HHC:29455 meet the requirements of Order 41 Rule 27 of the Code of Civil Procedure. Hence, the applications are rejected, and the documents cannot be taken into consideration.” 29. It was held in Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the additional evidence can be led when the Trial Court had refused to admit the evidence, the evidence was not available despite the exercise of due diligence and the evidence is required by the Court to effectively adjudicate the dispute pending before it. It was observed at page 96: - “29. Under Order 41 Rule 27 CPC, the production of additional evidence, whether oral or documentary, is permitted only under three circumstances, which are: (I) where the trial court had refused to admit the evidence, though it ought to have been admitted; (II) The evidence was not available to the party despite the exercise of due diligence; and (III) The appellate court required the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature. An application for the production of additional evidence cannot be allowed if the appellant was not diligent in producing the relevant documents in the lower court. However, in the interest of justice and when satisfactory reasons are given, the court can receive additional documents.” 30. It was laid down in the North Eastern Railway Administration. vs. Bhagwan Das, (2008) 8 SCC 511, that the 16 2026:HHC:29455 provisions of Order 41 Rule 27 do not enable an unsuccessful litigant to patch up the weak parts of his case. It was observed:- “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary, is not admitted, but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist. The circumstances under which additional evidence can be adduced are: (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [clause (a) of sub-rule (1)], or (ii) the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed [clause (aa), inserted by Act 104 of 1976], or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause [clause (b) of sub-rule (1)]. 14. It is plain that under clause (b) of sub-rule (1) of Rule 27 Order 41 CPC, with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it “requires” to enable it to pronounce judgment, or for any other substantial cause. The scope of 17 2026:HHC:29455 the Rule, in particular of clause (b), was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143]. While observing that the provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow the litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it was observed as follows : (AIR p. 148) “… Under clause (1)(b), it is only where the appellate court ‘requires’ it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the court to pronounce judgment, or for any other substantial cause, but in either case, it must be the court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent’.” 15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this Court while reiterating the aforenoted observations in Parsotim case [AIR 1931 PC 143] pointed out that the appellate court has the power to allow additional evidence not only if it requires such evidence “to enable it to pronounce judgment” but also for “any other substantial cause”. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence “to enable it to pronounce judgment”, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Thus, the question whether looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more 18 2026:HHC:29455 satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.” 31. It was laid down by the Hon’ble Supreme Court in Gobind Singh v. Union of India, 2026 SCC OnLine SC 339, that the parties can lead evidence before the appellate court after satisfying the conditions provided under Order 41 Rule 27 of CPC. It was observed: “11.2. In order to properly appreciate the controversy involved, it is necessary to first advert to the statutory provision applicable to the case at hand. Order XLI Rule 27 CPC reads as follows: “27. Production of additional evidence in the appellate court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if- (a) … (aa) the party seeking to produce additional evidence establishes that, notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) …the appellate court may allow such evidence or document to be produced, or a witness to be examined. (2) Wherever additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.” (emphasis supplied) 19 2026:HHC:29455 11.3. Rule 27, being couched in negative terms, makes it abundantly clear that parties to an appeal are not entitled to adduce additional evidence, whether oral or documentary, save and except in the circumstances expressly enumerated therein. The provision contemplates only three eventualities in which additional evidence may be permitted: first, where the court which passed the decree has refused to admit evidence which ought to have been admitted; second, where the party seeking to adduce such evidence establishes that, notwithstanding the exercise of due diligence, the evidence was not within its knowledge or could not have been produced at the time when the decree under appeal was passed; and third, where the appellate court itself requires any document to be produced or any witness to be examined in order to enable it to pronounce judgment or for any other substantial cause. 11.4. Accordingly, it is only upon satisfaction of any of the aforesaid three contingencies that an application under Order XLI Rule 27 CPC can be entertained. Sub-rule (2) of the said provision further mandates that where the appellate court forms an opinion that additional evidence is required to be admitted, it must record the reasons for such admission. While elucidating the scope and object of Order XLI Rule 27 CPC, this Court, in Union of India v. Ibrahim Uddin (2012) 8 SCC 148, undertook an exhaustive analysis of the provision. The relevant extract is reproduced hereinafter: “36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply when, on the basis of the evidence on record, the appellate court can 20 2026:HHC:29455 pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. … 38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage, where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. … 41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.” (emphasis supplied) Thus, a holistic reading of the aforesaid decision makes it clear that the appellate court's inquiry, while considering an application for leading additional evidence, is confined to examining whether such evidence is necessary to remove a lacuna in the case. More importantly, the appellate court may permit additional evidence only upon being satisfied that the conditions expressly stipulated under Order XLI Rule 27 CPC are fulfilled. The parties do not possess any vested or 21 2026:HHC:29455 automatic right to seek admission of additional evidence at the appellate stage. Consequently, the provision has no application where the appellate court is in a position to render a satisfactory and reasoned judgment on the basis of the evidence already available on record. 11.5. In State of Karnataka v. K.C. Subramanya (2014) 13 SCC 468, the appellants therein had moved an application before the appellate court under Order XLI Rule 27 CPC seeking leave to produce a map of the area to establish that the disputed land constituted a public road. This Court, while affirming the High Court's decision to reject the said application, held as follows: “4. …On perusal of this provision, it is unambiguously clear that the party can seek liberty to produce additional evidence at the appellate stage, but the same can be permitted only if the evidence sought to be produced could not be produced at the stage of trial in spite of exercise of due diligence and that the evidence could not be produced as it was not within his knowledge and hence was fit to be produced by the appellant before the appellate forum. 5. 5. It is thus clear that there are conditions precedent before allowing a party to adduce additional evidence at the stage of appeal, which specifically incorporate conditions to the effect that the party, in spite of due diligence, could not produce the evidence, and the same cannot be allowed to be done at his leisure or sweet will.” (emphasis supplied) This Court thus categorically held that unless the requirements stipulated under Order XLI Rule 27 CPC are strictly satisfied, a party cannot be permitted to adduce additional evidence at the appellate stage. Such permission cannot be granted as a matter of course, nor can additional evidence be introduced at the whim or convenience of a litigating party. 11.6. Where the appellate court permits additional evidence to be adduced, Order XLI Rule 27(2) CPC casts a mandatory obligation upon the court to record the reasons 22 2026:HHC:29455 for such admission. In Ibrahim Uddin (supra), this Court elucidated the rationale underlying the requirement of recording reasons in the following terms: “42. Whenever the appellate court admits additional evidence, it should record its reasons for doing so (sub- rule (2)). It is a salutary provision which operates as a check against too easy a reception of evidence at a late stage of litigation, and the statement of reasons may inspire confidence and disarm objection. Another reason for this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only Directory and not mandatory, if the reception of such evidence can be justified under the Rule.” 11.7. The procedural framework under Order XLI of CPC makes it abundantly clear that an appeal is ordinarily to be decided on the evidence adduced before the trial court. The appellate court is not expected to embark upon a fresh fact-finding exercise or permit production of additional evidence as a matter of routine. Where the appellate court is satisfied that the material already available on record is sufficient to enable it to pronounce judgment, it is well within its jurisdiction to confine its consideration to the evidence forming part of the record of the courts below.” 32. Therefore, it is not permissible to take these documents on record. 33. The applicants are also seeking to place on record the letter written by Pradhan Gram Panchayat, Kashipur and the photographs of the spot. A letter written by Pradhan containing 23 2026:HHC:29455 the statement of facts cannot be taken on record without examining the Pradhan. Similarly, the photographs cannot be taken on record without the examination of the photographer. Further, the certificate and the photograph pertain to the spot position as it existed during the pendency of the appeal. Since the Court has to determine the rights and liabilities as they existed on the date of the institution of the suit. Therefore, these documents are irrelevant and cannot be taken on record. 34. Consequently, the present application fails, and it is dismissed. The substantial question of law: 35. The learned Trial Court held that the plaintiff claimed damages of ₹50,000/-, but no expert had assessed the value of the fruit-bearing trees assessed stated to have been damaged by soil erosion. Similarly, the plaintiff claimed the damages of ₹10,000/- for the construction of the spurs, but he had failed to produce any evidence to show the cost of construction. The learned Appellate Court held that there is no requirement of law that the assessment of damages must be made by an expert. The report of the Horticulture Inspector could only serve as a corroborative piece of evidence. The plaintiff had asserted that 24 2026:HHC:29455 40-50 fruit-bearing trees were washed away by the rain. The plaintiff was claiming the damages of ₹50,000/- and had paid the court fees. Therefore, the plaintiff was entitled to the damages. 36. The findings recorded by the learned Appellate Court cannot be sustained. There is no dispute with the proposition of law that the statement of the Horticulture Inspector would have only been a corroborative piece of evidence, and the plaintiff could have examined any witness to prove his case. However, in the present case, no person has deposed about the value of 40-50 trees existing on the plaintiff's land. No person deposed the kind of fruits growing on the trees. The plaintiff had not even filed the record of the sale of the produce before the construction of the culvert, and after the construction of the culvert, to demonstrate that there was a shortfall in the sale that was attributable to the construction of the culvert. He stated that he had raised an orchard over his land, out of which 40-50 trees were washed away, causing a loss of ₹50,000/- to him. He has not given the details as to how he had assessed this value of ₹50,000/-. It is not shown whether this was the value of the trees in the market or the value of the fruits sold by him in the market. His witness 25 2026:HHC:29455 Achhar Singh (PW5) stated that the plaintiff's orchard was washed away, but he did not mention the nature of the trees or their value. Dilbag Singh, Patwari (PW2), stated that 10 marlas of land were washed away, and he had prepared a report to this effect. However, the report does not mention that 40-50 fruit- bearing trees existed on the plaintiff’s land, which was also washed away with the land. Therefore, the evidence led by the plaintiff was not sufficient to conclude that 40-50 trees were washed away or that those trees were worth ₹50,000/- or their produce could have generated ₹50,000/- by the sale in the market. The learned Appellate Court was swayed by the fact that the plaintiff had paid the Court fee of ₹50,000/- and he was entitled to a decree. Taken to the logical conclusion, every suit has to be decreed because the plaintiff pays the Court fees thereon. The payment of the court fee cannot be a criterion for decreeing the suit. The suit can only be decreed if the plaintiff succeeds in establishing his claim. In the present case, this claim was not established by the plaintiff by any satisfactory evidence, and the learned Appellate Court erred in holding that the plaintiff was entitled to ₹50,000/- because he had paid the Court fee thereon. 26 2026:HHC:29455 37. It was submitted that Dilbag Singh (PW2), patwari, had prepared the report in discharge of his official duties, and his report should have been accepted. This submission will not help the plaintiff. The plaintiff claimed the damages of ₹50,000/-; therefore, it was for him to prove that 10 marlas of land was worth ₹50,000/-. He had not brought any evidence to prove the value of the land, the trees standing on the land, or the value of the crop growing thereon. Therefore, even if the version of Dilbag Singh (PW2) is accepted that 10 marlas of land was washed away, it is not sufficient to decree the suit for recovery of ₹50,000/-. 38. It was submitted that the amount of ₹50,000/- is paltry and this Court should not interfere with the decree of ₹50,000/-. Even a second appeal does not lie in respect of the decree of ₹25,000/-. The submission will not help the plaintiff. The legislature has consciously restricted the second appeal in a case where the subject matter is worth ₹25,000/-. The loss of ₹50,000/- is more than ₹25,000/-, and the decree cannot be said to be unappealable. When the right of appeal is available, the Court cannot refuse to exercise that jurisdiction because the amount is insignificant to either party. 27 2026:HHC:29455 39. Therefore, the learned Trial Court had rightly held that the suit for recovery of damages could not have been decreed in the absence of the report of the expert, and the learned appellate Court had erred in reversing this finding recorded by the learned Trial Court. Hence, this substantial question of law is answered accordingly. Final order: 40. In view of the above, the present appeal is partly allowed, and the judgment and decree passed by the learned Appellate Court are ordered to be set aside regarding the recovery of ₹50,000/-. However, the decree shall survive regarding the mandatory injunction to protect the plaintiff's land. 41. Pending application(s), if any, also stand(s) disposed of. 42. Records of the learned Courts below be sent down forthwith. (Rakesh Kainthla) Judge 20th July, 2026 (Chander)