Parties on appeal are not entitled to present additional evidence under their law, only permitted in exceptional circumstances: Gujarat HC

The Gujarat High Court recently noted that additional evidence cannot be adduced on appeal as a matter of law, but only in exceptional circumstances, such as where evidence has been wrongly excluded by the civil court or was in fact unavailable to testify despite due diligence. are submitted.

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

The petitioners had filed a petition under Article 227 of the Constitution and Order the ownership of real estate.

Justice Divyesh A Doshi in his order referred to Order It said:

“A bare examination of the above provision shows that in an appeal proceeding to the Court of Appeal the parties to an appeal are not entitled to submit an application for additional evidence as a matter of the right to lead evidence, but in the case where the learned Civil Court, whose judgment is challenged on appeal, has refused to admit evidence which should have been admitted, or the party seeking to adduce additional evidence, finds that such evidence, despite due diligence , could have been produced by him or her at the time when the decree was passed against him or her, such series of documents may be included, subject to recording of the reasons by the court of appeal. Thus, Order that, despite the care shown to produce the evidence, the same due to unavoidable circumstances, it could not be produced”.

However, the court said certain exceptions are excluded, such as where the court from which the appeal is preferred has refused to admit evidence that should have been admitted. Another exception is that the party seeking to present additional evidence demonstrates that, despite exercising due diligence, such evidence was not within its knowledge or, after exercising due diligence, could not have been produced by it at the time the decision was appealed. was adopted against.

Another exception is that the court of appeals may require any document to be produced or any witness to be examined in order to pass judgment, or the court may for any other substantial reason permit such evidence or document to be produced or that a witness is heard. investigated.

Then it was said:Thus, while passing the impugned order, all the facts of the case were taken into consideration by the learned Judge. Therefore, it cannot be said that the learned Judge committed error in passing the impugned order. Moreover, during the examination and cross-examination of the witnesses, the said aspect of fact had in fact come within the knowledge of the appellants, but nevertheless they chose not to produce such documents in writing and thereafter in the appeal proceedings, an application is preferred”.

The petitioners (original defendants) and defendant No. 2 were sued by defendant No. 1 (original plaintiff). The defendant No. I sought possession of a plot and annulment of two sale deeds dated 2006 and 2008, alleging that they were invalid. The Second Additional Civil Judge, Ahmedabad (Rural), ruled in favor of the plaintiff and ordered the defendants to transfer possession of the property within 60 days, canceled the disputed sale deeds and issued a permanent injunction against the defendants to to interfere with the property.

Dissatisfied with the court’s decision, the petitioners filed regular civil appeals before the Ahmedabad District Court. During the appeal, they filed an application (Exh.18) under Order Ltd and a copy of the order by the City Deputy Collector. The 4th Additional District Judge, Ahmedabad, partially granted the application, allowing the city Deputy Collector’s order but dismissing the resolution. Therefore, the petitioners approached the court.

The counsel for the petitioners submitted that the respondent had filed a suit to cancel the 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 attempted to submit additional documents, but the court approved only one document and rejected others.

The attorney argued that the court’s decision to reject the documents was based on an issue (regarding the authority of the person who executed the deed of sale) that was never raised in the original lawsuit. The petitioners did not know that it was necessary to produce certain documents, such as a decision of the company that executed the deed, because the matter had not been discussed before. The lawyer further submitted that a certificate regarding the location of the property in a disturbed area was pending with the authorities and had only recently been granted. Therefore, petitioners could not submit the certificate earlier but submitted it as soon as it was available.

The applicant’s counsel further referred to a court ruling in this case by Mukulbhai Rajendra Thakor vs. Upendrabhai Anupam Joshi (2018)where it was stated that documents filed in an appeal under Order XLI, Rule 27 of the CPC should be taken into consideration at the final stage of the appeal. The lawyer argued that the document should have been fully revised and the petitioners should have been given the opportunity to present evidence in support of it. He then asked the court to grant the request and to direct the Court of Appeal to include the document in the case file.

The defendant’s lawyer strongly opposed the request. 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 petitioners had already been raised during the trial as the evidence and cross-examination of the prosecutor had addressed these points.

He further pointed out that the petitioners had sufficient time to produce the documents during the appeal, but had waited too long without valid reasons. The petitioners did not submit their request for additional documents until December 2023, with the intention of delaying the procedure. Mr Chhaya emphasized that the documents were not new or unavailable at the time of the trial, and that the petitioners were aware of them but chose not to produce them earlier. He submitted that the petitioners were attempting to fill gaps in their case which should not be allowed and therefore the application was rightly dismissed. He then asked the court to deny the request.

Findings

The Supreme Court noted that the defendant filed a lawsuit in 2008, which was decided in their favor in 2021. The petitioners appealed in 2022 and later attempted to submit additional documents, but the Court of Appeals allowed only one document. The petitioners have challenged this decision.

The court also relied on the Supreme Court case Sanjay Kumar Singh vs. State of Jharkhand clarifies that appellate courts generally do not accept new evidence. However, exceptions exist under Order 41, Rule 27 of the CPC, which allow additional evidence if it directly affects the case or helps the court render a fair verdict. The court emphasized that the most important 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 failed to consider whether the additional evidence was essential to the verdict and should have been admitted.

Furthermore, the Court based its decision on the case of Executive Engineer v Legal Heirs of Koyabhai Budhabhai Parmar (2018) where a Division Bench of the Supreme Court emphasized that the party seeking additional evidence must show that despite due diligence, it could not have been produced earlier. A simple claim that no evidence can be provided is not sufficient. Furthermore, the court stated that even if evidence is important, it should only be allowed if it is necessary to help the court reach a verdict. If a party has not previously provided evidence, it cannot use this rule to provide new evidence at the appeal stage, the court said.

Judge Joshi then observed “…I am of the considered opinion that the ingredients of Order The Court further noted that the petitioners did not provide sufficient evidence in their petition to convince the Court of Appeal that the documents are necessary for the delivery of the judgment.

The Court subsequently dismissed the application because, in view of the above observations, no defect could be identified in the order of the Court of Appeal.

Case title: Javedbhau @Javedkhan Babubhai Saiyad & Ors. v/s Sikandarali Kasamali Kureshi & Anr.

Click here to read/download the order