The Gujarat High Court recently observed that on appeal, additional evidence cannot be produced as of right, but only in exceptional circumstances, for example where evidence was wrongly excluded by the civil court or was not not actually available for production despite all due diligence.

In doing so, the court emphasized that the party’s inadvertence or inability to understand the legal issues at stake, poor advice from a litigant, or the mere fact that the evidence is important do not constitute sufficient grounds to invoke this arrangement.

The petitioners had filed an application under Article 227 of the Constitution and Order XLI, Rule 27 (Production of further evidence before the Court of Appeal) CPC, challenging the order of the District Judge in a case involving dispute over ownership of a property.

Judge Divyesh A Doshi in his order, he referred to Order XLI, Rule 27 of the CPC, which allows additional evidence only if it was not available despite reasonable diligence, or if it is necessary for a fair trial. He said:

“A bare reading of the above-mentioned provision reveals that in appeal proceedings before the Court of Appeal, parties to an appeal are not entitled to file a request for further evidence as a matter of right to present evidence, but in the event that the learned civil court, whose judgment is appealed against, has refused to admit evidence which should have been admitted or the party seeking to adduce additional evidence, establishes that, despite all due diligence, such evidence could be produced by her at that time when judgment was passed against him, this set of documents may be recorded subject to recording of reasons by the learned Court of Appeal. Thus, Order XLI, Rule 27 of the Code, provides that parties to an appeal are not entitled to adduce additional evidence, whether oral or documentary, before the appellate court without assigning justifiable cause to demonstrate that despite due diligence shown to produce the same due to unavoidable circumstances, it could not be produced.”

The court said, however, that there are certain exceptions that have been provided for, such as if the court whose judgment is being appealed has refused to admit evidence that should have been admitted. Another exception is that the party seeking to adduce additional evidence establishes that, despite the exercise of due diligence, such evidence was not within the party’s knowledge or could not, after the exercise of due diligence, be produced by him at the time the judgment was appealed. against was voted on.

Another exception is that the court of appeal requires that any document be produced or that any witness be examined to enable it to pronounce a judgment, or for any other serious reason, the court of appeal may authorize the production of such evidence. evidence or documents, or the appearance of such a witness. examined.

He then said: “Thus, while passing the impugned order, the entire facts of the case were considered by the learned Judge. Therefore, it cannot be said that the learned Judge committed any error in passing the impugned order. Further, in fact, during the examination and cross-examination of the witnesses, the said factual aspect had become known to the appellants, but despite this, they chose not to produce such documents on record and, subsequently, in the appeal procedure, one application was favored.

The petitioners (original respondents) and respondent no. 2 were sued by respondent no. 1 (original applicant). Defendant No. I sought possession of land and cancellation of two sale deeds signed in 2006 and 2008, finding them invalid. The 2nd Additional Principal Civil Judge, Ahmedabad (Rural) ruled in favor of the plaintiff and directed the defendants to hand over possession of the property within 60 days, set aside the impugned sale deeds and issued a permanent injunction against the defendants of any interference. the property.

The petitioners, unhappy with the trial court’s decision, filed a regular civil appeal in the Ahmedabad District Court. During the appeal, they submitted an application (Exhibit 18) under Order XLI, Rule 27 CPC, to include additional documents – a 1977 resolution passed by the board of directors of Bimal Investment Pvt. Ltd and a copy of the order of the Deputy City Collector. The 4th Additional District Judge of Ahmedabad partly allowed the application, admitting the order of the city deputy collector, but dismissed the resolution. The petitioners therefore approached the High Court.

Counsel for the petitioners submitted that the respondent had filed a suit seeking to set aside the sale deeds and recover possession of a property. The lower court ruled in favor of the respondent and the petitioners appealed the decision. During the appeal, the petitioners sought to submit additional documents, but the court allowed only one document and rejected the others.

The lawyer argued that the court’s decision to reject the documents was based on an issue (concerning the authority of the person who signed the bill of sale) that was never raised in the original suit. The petitioners did not know that it was necessary to present certain documents, such as a resolution from the company that signed the deed, since the issue had not been addressed previously. The lawyer also argued that a certificate stating that the property was in a disturbed area was pending with authorities and had only recently been granted. The petitioners, therefore, could not submit the certificate earlier but submitted it as soon as it was available.

Counsel for the petitioner further referred to a judgment of this Court in the case of Mukulbhai Rajendra Thakor Vs. Upendrabhai Anupam Joshi (2018)where it was stated that the documents submitted in an appeal under Order XLI, Rule 27 of the CPC should be considered at the final stage of the appeal. The lawyer argued that the document should have been fully reviewed and the petitioners should have been given the opportunity to present supporting evidence. He then requested that the court grant the motion and order the Court of Appeals to accept the document into the record.

The defendant’s attorney strongly opposed the petition. He argued that the Court of Appeal’s decision was fair and based on sound legal principles. He explained that the issues raised by the applicants had already been addressed during the trial, since the complainant’s testimony and cross-examination had covered these points.

He further pointed out that the petitioners were given sufficient time to submit the documents during the appeal but waited too long without valid reasons. The applicants only filed their request to produce additional documents in December 2023, intending to delay the proceedings. Mr Chhaya pointed out that the documents were not new or unavailable at the time of the trial and that the applicants were aware of them but chose not to produce them earlier. He argued that the petitioners were trying to fill gaps in their argument, which should not be allowed, and that is why the application was rightly rejected. He then asked the court to dismiss the motion.

Results

The High Court observed that the defendant filed a lawsuit in 2008, which was decided in their favor in 2021. The petitioners appealed in 2022 and later sought to submit additional documents, but the Court of Appeal only authorized one document. The petitioners challenged this decision.

The court also relied on the judgment of the Supreme Court in the case Sanjay Kumar Singh Vs. State of Jharkhand clarified that appeals courts generally do not accept new evidence. However, exceptions exist under Order 41, Rule 27 of the CPC, allowing additional evidence if it directly affects the case or assists the court in passing a fair judgment. The court emphasized that the key factor is whether the evidence is necessary for the court to make a judgment or for some other important reason. In this case, the High Court did not consider whether the additional evidence was essential to the judgment and should have allowed it.

Furthermore, the Court relied on the case of Executive engineer c. Legal heirs of Koyabhai Budhabhai Parmar (2018) where a The division bench of the High Court emphasized that the party seeking additional evidence must demonstrate that, despite due diligence, it could not have been produced earlier. A simple assertion of the inability to produce evidence is not enough. Additionally, the court said that although the evidence is important, it should only be admitted if it is necessary to help the court reach a judgment. If a party has not provided evidence earlier, it cannot use this rule to introduce new evidence at the appeal stage, the court said.

Justice Joshi then observed “…I am of the opinion that the elements of Order XLI, Rule 27 of the CPC, as stated in the aforesaid decision, have not been satisfied by the petitioners in the impugned application filed before the learned Court of call. » The Court further noted that the applicants had not provided sufficient evidence in their application to convince the Court of Appeal that the documents were necessary for the delivery of judgment.

The Court then dismissed the application because, in view of the above observations, no infirmity can be found in the order passed by the Court of Appeal.

Case Title: Javedbhau @Javedkhan Babubhai Saiyad & Ors. v. Sikandarali Kasamali Kureshi & Anr.

Click here to read/download the order