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2021 (12) TMI 1370 - JAMMU AND KASHMIR HIGH COURTDismissal of application seeking permission to lead additional evidence at appellate stage - allegations against the petitioner in the complaint are that the sample of milk manufactured by his business concern, upon analysis of the sample take of his product, was found to be sub-standard, unsafe and misbranded by the Referral Food Laboratory, Kolkata - HELD THAT:- It ultimately is the discretion of the Appellate Court as to whether additional evidence can be permitted to be adduced at the appellate stage but such discretion has to be exercised on recognized principles evolved over a period of time by the case law on the subject. The only consideration which has to be kept in mind by the Appellate Court is to secure the ends of justice. However, the additional evidence cannot and ought not to be received in such a manner as to cause prejudice to any of the parties. It cannot be a re-trial and it is only the concept of justice which much prevail. The Appellate Court cannot allow additional evidence to be led just to fill up the lacuna at the appellate stage. The Court has also to see as to whether the evidence proposed to be led is relevant. The test to be applied is as to whether evidence sought to be advanced is essential for just decision of the case. Adverting to the facts of the instant case, as already noted, petitioner proposes to examine witness, namely, Murtaza Ali, who is stated to have deposed about the procedure adopted during the course of sampling and sealing. The said statement has been made by the aforesaid witness in the departmental enquiry that was conducted pursuant to the orders of the trial court in the judgment which is subject matter of appeal before the Appellate Court. The question arises as to whether petitioner can be allowed to do so at the appellate stage. So far as the opinion of the experts is concerned, the same is a relevant fact in terms of Section 45 of the Evidence Act. What the petitioner seeks to produce on record is opinion of an expert who has published a research paper on effects of Formalin on the test results of samples of milk. An expert is not a witness of fact and his evidence is really of an advisory character and his duty is to furnish court with scientific test criteria to test accuracy of conclusions. Based on such expert opinion and upon appreciation of the facts of a case, the court has to give its independent judgment. The court has not to subjugate its own judgment to that of expert. Nonetheless, opinion of an expert is a relevant fact. Thus, it is concluded that the petitioner is seeking permission to produce evidence which is relevant to the issue pending before the Appellate Court and there was no occasion for the petitioner to produce this evidence during trial of the case as the same has come to his notice only after conclusion of the trial. The evidence sought to be introduced by the petitioner is not only necessary for the just decision of the appeal but shutting out the same would result in failure of justice. It is not a case where petitioner is trying to fill up the lacunae left during the trial of the case but it is a case where petitioner is trying to place on record the evidence which has come to his notice after the conclusion of trial and which has a definite bearing upon decision of the case. Petition allowed.
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