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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
SANJAY DHAR, J.
Joginder Kumar and Anr. – Petitioners
Versus
Seema Dubey, W/o. Shri Ravi Kumar and Anr. – Respondents
CR No. 01 Of 2021
Decided On : 06-10-2023
Additional Evidence - Appellate Court - Order 41 Rule 27 of CPC - [Order 41 Rule 27 of CPC] - The court discussed the provisions contained in Order 41 Rule 27 of CPC, which lays down the procedure for producing additional evidence at the appellate stage. The court highlighted the circumstances under which parties can be allowed to produce additional evidence before the Appellate Court and emphasized the importance of the stage of pronouncement of the judgment in determining the admissibility of additional evidence.
Fact of the Case:
The petitioners challenged the order passed by the Appellate Court, which dismissed their application for production of additional evidence in the form of a certified true copy of a statement made by Ishro Devi in another suit. The petitioners contended that the statement was necessary and important for the decision of the appeal as it had a significant bearing on the main issue.
Finding of the Court:
The court found that the Appellate Court had erred in dismissing the application for additional evidence at a premature stage, without undertaking an appreciation of the evidence led by the parties before the trial court. The impugned order was deemed unsustainable in law, and the case was remanded to the Additional District Judge, Udhampur for a fresh decision on the application for production of additional evidence at the time of the final hearing of the appeal.
Issues: The main issue was whether the Appellate Court's dismissal of the application for additional evidence before the final hearing of the appeal was justified.
Ratio Decidendi: The court emphasized the importance of the stage of pronouncement of the judgment in determining the admissibility of additional evidence at the appellate stage, as per the provisions of Order 41 Rule 27 of CPC. It cited relevant case law to support the requirement for the Appellate Court to hear the application for additional evidence at the time of the final hearing of the appeal, after appreciating the evidence on record.
Final Decision: The petition was allowed, and the impugned order was set aside. The case was remanded to the Additional District Judge, Udhampur with a direction to decide the application for production of additional evidence afresh at the time of the final hearing of the appeal.
JUDGMENT :
1. The petitioners have challenged order dated 11.12.2020 passed by the Additional District Judge, Udhampur (hereinafter to be referred as the Appellate Court), whereby their application for production of additional evidence in the shape of certified true copy of the statement of Mst. Ishro Devi recorded on 23.12.2014 has been dismissed.
2. It appears that one Ishro Devi, predecessor-in-interest of the respondents had filed a suit before the Court of Munsiff (Additional Special Mobile Magistrate) Udhampur (hereinafter to be referred to as the trial Court) against the petitioners herein, seeking their eviction from a shop situated at Gole Market, Udhampur. The said suit came to be decreed by the learned trial court in terms of its judgment and decree dated 31.03.2018. The aforesaid judgment and decree came to be assailed by the petitioners herein by way an appeal before the Appellate Court.
3. During pendency of the appeal, the petitioners/appellants filed an application for producing the certified true copy of the statement made by Ishro Devi on 23.12.2014 in another suit, titled, Ishro Devi vs. Vijay Kumar and Ors. by way of additional evidence. It is contended that in the said statement Smt. Ishro Devi had admitted that if rent in respect of the suit shop is enhanced then she does not intend to get the said shop vacated. On this ground, it was contended that the said statement of Mst. Ishro Devi is necessary and important for decision of the appeal as the same has important bearing on the main issue.
4. Learned Appellate Court vide its order dated 11.12.2020 dismissed the application of the petitioners on the ground that the statement proposed to be tendered by the appellants by way of additional evidence would not help the Court in pronouncing the effective judgment.
5. The petitioners have challenged the impugned order on many grounds but the only ground, which has been urged by the learned counsel during the course of hearing, is that the learned Appellate Court could not have decided the application of the petitioners before final hearing of the appeal. It has been contended that it is only at the stage of hearing the final arguments in the appeal upon appreciating the evidence led before the trial court that the Appellate Court would be in a position to determine as to whether the additional evidence sought to be produced, is of any help to the said Court in pronouncing the judgment but in the instant case, the Appellate Court has, prior to reaching the said stage, dismissed the application of the petitioners.
6. Heard and considered.
7. In order to determine the merits of the contentions raised by the petitioners, it would apt to refer to the provisions contained in Order 41 Rule 27 of CPC, which lays down the procedure for producing the additional evidence at the appellate stage:
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) 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, or
(b) 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.
(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission.”
8. From a perusal of the aforesaid provision, it is clear that in the normal course, the parties to an appeal are not entitled to produce
The main legal point established in the judgment is the requirement for the Appellate Court to consider the application for additional evidence at the time of the final hearing of the appeal, after a....
An application for additional evidence at an appellate stage should be considered at the time of the final hearing of the appeal, in accordance with the principles laid down by the Hon'ble Apex Court....
Order 41 Rule 27 of Code is a provision which enables party to file additional evidence at first and second appellate stage.
Inadvertence of party or his inability to understand legal issues involved or wrong advice of a pleader or negligence of a pleader or that party did not realise importance of a document does not cons....
Additional evidence must be evaluated during the final appeal hearing, not before, ensuring judicial rigor in respecting procedural rules.
Applications under Order 41 Rule 27 and Order 6 Rule 17 of the CPC should be considered at the time of final hearing of the appeal, as per the principles laid down by the Hon'ble Supreme Court in the....
Additional evidence under Order 41 Rule 27 CPC must be considered at the final hearing of an appeal, not prior.
The appellate court must consider applications for additional evidence at the time of hearing the appeal, ensuring relevance to the case.
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