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".BackgroundThe 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 ...

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

Lovina B Thakkar

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