Section 167 of the Indian Evidence Act deals with the improper admission or rejection of evidence in civil cases. It states that a new trial is not automatically granted if there is sufficient evidence to justify the decision irrespective of the improper admission or rejection. It is difficult for appellate courts to apply this section to improperly rejected oral testimony, but easier for documentary evidence where the effect can be judged. The Code of Civil Procedure indirectly allows for new trials through remand or review. When appealing based on improper evidence, the burden is on the appellant to prove not just improper admission/exclusion but also a miscarriage of justice. Case law has found the appellate court should disregard improper evidence and determine if sufficient proper evidence remains to support the decision. The object of Section

1. IMPACT OF SECTION 167
OF THE INDIAN
EVIDENCE ACT IN CIVIL
CASES

2. EFFECT OF IMPROPER ADMISSION OR
REJECTION IN CIVIL CASES
 The improper admission or rejection of evidence is not ipso facto ground for
new trial, where there is ample evidence to justify decision irrespective of
the admission or the rejection of evidence.
 But it should be borne in mind that the reception of inadmissible Evidence is
less injurious then the rejection of admissible evidence because in the former
case in arriving at a decision the evidence wrongly admitted can well be
excluded from consideration whereas a latter case the evidence wrongly
rejected can only be brought on record by having recourse to further
proceeding.

3. DIFFICULTY IN APPLYING SECTION 167
It is difficult to apply Section 167 to the improper rejection of evidence of a
witness as the appellate court can have no ideas as to what that witness is going
to say. In the case of document however, it is possible for the appellate court to
judge what effect if any, the admission or rejection of that document would have
on the result of the case, but one cannot often estimate the effect of the
admission of oral evidence.

4. PROVISIONS UNDER CIVIL PROCEDURE
CODE
 The Code of Civil Procedure does not provide directly for a new trial in civil
cases but it has been given indirectly though the following provisions:
1. Order 41, Rule 23 provides for remand.
2. Order 47 of the Code provides for review:
a. Order 47, Rule 8 says that when an application for review of judgment is
granted, the court may at once rehear the case or make such order in regard
to the rehearing as it thinks fit.
b. Order 47 , Rule 4 requires strict proof for review.

5. PROVISION UNDER CIVIL PROCEDURE
CODE
 A pure question of law can be raised even without pleading. However, if the
finding recorded by the lower court can be sustained on other materials on
the record, the judgment of the Lower court is not to be set aside as ordained
by section 167, Evidence Act.
 The Court of first appeal can decide question of fact also but the Court of
second appeal cannot entertain such questions as per Section 100 of Civil
Procedure Code. As envisaged by Section 100 second appeal lies only where
the case involves a substantial question of law. Though the expression
"substantial question of law" has not been defined in the Code, it was defined
by the Supreme Court in the case of Chunilal Mehta v. Century Spinning and
Manufacturing Co. Ltd.2 The wrongful reception or rejection of evidence is
an error of law, and as such may be made the ground for second appeal.
2 AIR 1962 SC 1314

6. BURDEN OF PROOF
When an appeal is grounded for the improper admission and rejection of
evidence, the burden of proof is upon the appellant to prove that there was not
only an improper evidence or exclusion but there was also a miscarriage of
justice being done by such an act.

7. CASE LAW
In the case of Mohar Singh v. Ghariba1, the following observations were made by
the Privy Council:
“It is the duty of their Lordships, who are judges of the facts, in such a case as
this, to consider whether, throwing aside the evidence which ought not to have
been admitted, there still remains sufficient evidence to support the decrees.
The Court sitting in first appeal should throw aside the evidence which ought not
to have been admitted and then consider whether there still remains sufficient
evidence to support the decree. The decree can be supported upon relevant
evidence only; and if, after all that is irrelevant has been thrown aside, there
does not remain enough that is relevant to support it, the decision must be
reversed.”
1 6 D.L.R. 495: 15 W.R. (P.C.)8.

8. OBJECT OF SECTION 167
The object of section 167 is that the Court of Appeal or Revision should not
disturb a decision on the ground of improper admission or rejection of evidence,
if in spite of such evidence, there is sufficient material in the case to justify the
decision. In other words, technical objections will not be allowed to prevail
where substantial justice has been done.