Gujarat High Court: In a petition filed under Article 227 of the Constitution of India and under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 (‘CPC’) praying for quashing and setting aside the order of Additional District Judge, wherein the Judge rejected the application of the petitioners to produce additional documents, the Single Judge bench of Divyesh A. Joshi, J. reiterated that parties in an appeal are not automatically entitled to produce additional evidence, and such a request will only be allowed in exceptional circumstances.
Thus, the Court said that despite being aware of the document and having the opportunity to produce the additional document, the appellants failed to do so. Additionally, neither have they satisfied the ingredients of Order 41 Rule 27 of CPC, nor have they made any assertion based on which it can be said that such documents are necessary for proper adjudication of the matter.
Background:
A civil suit was filed against the petitioners for handing over vacant and peaceful possession of a plot , The Court directed the petitioners to handover the possession of the suit property within 60 days, cancelled the sale deeds and restrained them from interfering with the suit property.
Being aggrieved by this decision, the petitioners filed an appeal against it. Pending the appeal, the petitioner applied under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (‘CPC’) seeking permission to produce additional documents. The Additional District Judge, vide the impugned order, partly allowed the application and took on record one of the two documents, the resolution dated 15-06-1977 passed by the Board of Directors of Bimal Investment Pvt Ltd (‘the Resolution’) was rejected. Hence, the present petition was filed.
Analysis and Decision:
The Court noted that Order 41 Rule 27 of CPC 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. However, there are certain exceptions to this rule.
The Court further noted that while deciding the original plaint, the Judge observed in very categorical terms that the Resolution was in possession as well as knowledge of the petitioners, but it was not produced. The Court observed that even if for the sake of arguments, it is believed that the petitioners failed to produce this document due to bonafide mistake or misconception then also they could have come up with this additional evidence along with the appeal or soon thereafter, but they did not do so. The Court also noted that while examining and cross-examining the witnesses, the aspect concerning the Resolution had come within the knowledge of the petitioners but despite that, they chose not to produce it and instead filed an application during the appeal proceedings.
The Court referred to the cases of Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 and Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 and affirmed that the observations of the Supreme Court in the abovementioned cases indicates that 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, which is stated in the provision. However, as an exception, Order 41 Rule 27 of the CPC enables the Appellate Court to take additional evidence in exceptional circumstances.
The Court also reiterated that the Appellate Court may permit additional evidence if the conditions laid down in Rule 27 are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
The Court also referred to a judgement rendered by the division bench of this Court namely Executive Engineer, Gujarat Electricity Board, Now Gujarat State Electricity Corporation Limited v. Legal Heirs of Koyabhai Budhabhai Parmar1, wherein it was held that the appellant who is guilty of remissness in the Lower Court is not entitled to the indulgence of being allowed to give further evidence under Order 41 Rule 27 of CPC, inasmuch as, he had ample opportunity to produce the documentary evidence which is sought to be brought on record by way of additional evidence before the Reference Court, but failed to do so.
Placing reliance on the law enunciated in the aforesaid decisions, the Court held that the ingredients of Order 41 Rule 27 of CPC have not been satisfied by the petitioners in the application filed before the Appellate Court. Additionally, there is no proper assertion made by them in the application, based on which, the Appellate Court can jump to a conclusion that such documents are necessary for proper adjudication and for pronouncement of the judgment.
The Court also held that while passing the impugned order, entire facts of the case have been considered by the Additional District Judge, therefore, it cannot be said that the Judge has committed any error while passing impugned order.
Thus, the Court rejected the present petition stating that there is no infirmity in the impugned order.
[Javedbhai v. Sikandarali Kasamali Kureshi, 2024 SCC OnLine Guj 3987, decided on 28-10-2024]
Advocates who appeared in this case :
For the petitioners: Mr. AB Munshi
For the respondent: Mr. Satyam Chhaya and Mr. Parv C Mehta
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1. 2018:GUJHC:45626-DB