Parties In Appeal Not Entitled To Produce Additional Evidence As A Matter Of Right, Only Permitted In Exceptional Circumstances: Gujarat HC

The Gujarat High Court recently observed that in appeal, additional evidence cannot be produced as a matter of right but only in exceptional circumstances, such as when evidence was wrongly excluded by the civil court or was genuinely unavailable to be produced despite due diligence.

In doing so, the court emphasized that inadvertence of the party or his inability to understand the legal issues involved, wrong advice of a pleader, or the mere fact that the evidence is important are not sufficient grounds to invoke this provision.

The petitioners had filed a petition under Article 227 of the Constitution and Order XLI Rule 27 (Production of additional evidence in Appellate Court) CPC, challenging the order by the District Judge in matter involving the dispute over ownership of a property.

Justice Divyesh A Doshi in its order referred to Order XLI Rule 27 of the CPC, which permits additional evidence only if it was unavailable despite due diligence, or if necessary for a fair judgment. It said:

"A bare perusal of the aforesaid provision, it is found out that in appeal proceeding before the Appellate Court, the parties to an appeal is not entitled to produce an application of additional evidence as a matter of right to lead evidence but in case, when the learned civil court, whose decree is challenged in the appeal, has refused to admit evidence which ought to have been admitted or the party seeking to produce additional evidence, establishes that despite due diligence, such evidence could be produced by him or her at the time when the decree was passed against him or her, such set of documents can be taken on record subject to recording of the reasons by the learned Appellate Court. Thus, Order XLI rule 27 of the Code says that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court without assigning any justifiable cause to show cause that despite due diligence shown to produce the same due to unavoidable circumstances, it could not be produced". 

The court however said that there are certain exceptions which have been carved out such as– if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted. Another exception is that 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.

Another exception is that 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, the appellate court may allow such evidence or document to be produced, or witness to be examined.

It thereafter said, "Thus while passing impugned order, entire facts of the case have been considered by the learned Judge, therefore, it cannot be said that the learned Judge has committed any error while passing impugned order. Over and above that, in fact, while examining and cross-examining the witnesses, the said fact aspect had come within the knowledge of the appellants but despite that, they have chosen not to produce on record such documents and, thereafter in the appeal proceeding, an application has been preferred".

Background

The petitioners (original defendants) and respondent no. 2 were sued by respondent no. 1 (original plaintiff). The Respondent no. 1 sought possession of a plot and the cancellation of two sale deeds executed in 2006 and 2008, claiming they were invalid. The 2nd Additional Senior Civil Judge, Ahmedabad (Rural), ruled in favour of the plaintiff and ordered the defendants to hand over possession of the property within 60 days, canceled the disputed sale deeds, and issued a permanent injunction against the defendants from interfering with the property.

The petitioners, dissatisfied with the trial court's decision, filed Regular Civil Appeal in the District Court, Ahmedabad. During the appeal, they submitted an application (Exh.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 by the City Deputy Collector. The 4th Additional District Judge, Ahmedabad, partly allowed the application, admitting the City Deputy Collector's order but rejected the resolution. Hence, the petitioners approached the high court. 

The advocate for the petitioners, argued that the respondent had filed a lawsuit seeking to cancel sale deeds and regain 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 others.

The advocate contended that the court's decision to reject the documents was based on an issue (regarding the authority of the person who executed the sale deed) that was never raised in the original suit. The petitioners did not know it was necessary to present certain documents, such as a resolution from the company that executed the deed, since the issue wasn't discussed before. The advocate also argued that a certificate related to the property being in a disturbed area was pending with the authorities and had only recently been granted. Therefore, the petitioners could not produce the certificate earlier but submitted it as soon as it was available.

The Counsel for the Petitioner further referred to a ruling by this Court in the case of Mukulbhai Rajendra Thakor Vs. Upendrabhai Anupam Joshi (2018), where it was stated that documents submitted in an appeal under Order XLI, Rule 27 of the CPC should be considered at the final stage of the appeal. The advocate argued that the document should have been fully reviewed and the petitioners given a chance to present evidence to support it. He then requested that the court allow the petition and direct the Appellate Court to accept the document into the case record.

The advocate for the respondent, strongly opposed the petition. He argued that the decision of the Appellate Court was fair and based on solid legal principles. He explained that the issues raised by the petitioners had already been addressed during the trial, as the plaintiff's evidence and cross-examination had covered these points.

He further pointed out that the petitioners had enough time to present the documents during the appeal but waited too long without valid reasons. The petitioners only filed their application to produce additional documents in December 2023, intending to delay the proceedings. Mr. Chhaya emphasized that the documents were not new or unavailable at the time of the trial, and the petitioners were aware of them but chose not to produce them earlier. He argued that the petitioners were trying to fill gaps in their case, which should not be allowed, and therefore the application was rightly rejected. He then urged the court to reject the petition.

Findings

The high court observed the respondent filed a suit in 2008, which was ruled in their favour in 2021. The petitioners appealed in 2022 and later sought to introduce additional documents, but the Appellate Court allowed only one document. The petitioners challenged this decision.

The court also relied on the case of the Supreme Court in Sanjay Kumar Singh Vs. State of Jharkhand clarified that, generally, appellate courts 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 helps the court pronounce 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 another important reason. In this case, the High Court failed to consider if the additional evidence was essential for the judgment and should have allowed it.

Further, the Court relied on the case of Executive Engineer v. Legal Heirs of Koyabhai Budhabhai Parmar (2018) where a Division Bench of the high court emphasized that the party seeking additional evidence must show that despite exercising due diligence it could not be produced earlier. A simple claim of inability to produce evidence is not enough. Moreover, the court stated that even if evidence is important, it should only be allowed if it's necessary to help the court reach a judgment. If a party did not provide evidence earlier, they cannot use this rule to introduce new evidence at the appeal stage, the court had said. 

Justice Joshi then observed “…I am of the considered opinion that the ingredients of Order XLI Rule 27 of the CPC, as indicated in the above-mentioned decision, have not been satisfied by the petitioners in the application impugned filed before the learned Appellate Court.” The Court further noted that the petitioners have not provided sufficient evidence in their application to convince the Appellate Court that the documents are necessary for the pronouncement of the judgment.

The Court then rejected the petition as in view of the aforesaid observations, no infirmity can be found in the order passed by the Appellate Court.

Case Title: Javedbhau @Javedkhan Babubhai Saiyad & Ors. v/s Sikandarali Kasamali Kureshi & Anr.
Case Citation: 2024 LiveLaw (Guj) 178

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