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IN THE HIGH COURT OF ALLAHABAD
ALOK MATHUR, J.
Shiv Nandan And Others – Appellants
Versus
District Judge Unnao And Others – Respondents
Writ C No.1002500 of 1999
Decided on : 11-01-2024
Additional Evidence - Civil Procedure - Order 41 Rule 27 - [Order 41 Rule 27] - The court discussed the conditions under which production of additional evidence is permitted under Order 41 Rule 27 CPC and highlighted the importance of due diligence, the requirement for additional evidence to enable a satisfactory judgment, and the discretion of the court in allowing additional evidence. The court also emphasized that the inadvertence of a party or the inability to understand legal issues does not constitute a substantial cause for admitting evidence in appeal. The judgment of the Supreme Court in Jagdish Prasad Patel v. Shivnath was referenced to support the decision.
Fact of the Case:
The petitioner filed a suit for permanent injunction based on an unregistered sale deed. The trial court rejected the application for injunction, and the petitioner appealed. During the appeal, the petitioner obtained a registered sale deed and sought to place it on record as additional evidence. The District Judge rejected the application under Order 41 Rule 27, stating that it would change the basis of the suit.
Finding of the Court:
The court found that the registered sale deed was not available at the time of filing the suit and was a material document for determining the title of the disputed property. The court held that the reasoning given by the trial court for rejecting the application was incorrect and arbitrary.
Issues: The issues involved the rejection of the application for additional evidence under Order 41 Rule 27 and the impact of the registered sale deed on the suit proceedings.
Ratio Decidendi: The court emphasized the conditions for permitting additional evidence under Order 41 Rule 27, the importance of due diligence, and the discretion of the court in allowing additional evidence. It also highlighted that the inadvertence of a party or the inability to understand legal issues does not constitute a substantial cause for admitting evidence in appeal.
Final Decision: The court allowed the petitioner's writ petition, set aside the impugned order, and directed the District Judge to consider and pass appropriate orders on the application/appeal of the petitioner with expedition in accordance with the law.
JUDGMENT :
1. Heard Sri Mohd Saeed, learned counsel for the petitioners, learned Standing counsel for respondent No. 1 and Sri R. K. S. Chauhan for respondent No.s 2 to 5.
2. By means of the present writ petition the petitioner has challenged the order dated 25.8.1999 passed by District Judge, Unnao on the application for taking additional evidence under Order 41 Rule 27 preferred by the petitioner in the appeal filed by him against rejection of the application under Order 39 Rule 1 and 2 of CPC.
3. The facts in brief are that the petitioner on 2.9.1995 had filed a suit for permanent injunction against opposite party Nos. 2 to 5 before Civil Judge (Junior Division), Purwa, Unnao. The said suit was filed by the petitioners on the basis of title wherein it was asserted that Sukhdei had sold the disputed property to Shiv Nandan, the predecessor to interest of the petitioner. Along with the plaint the petitioner had moved an application under Order 39, Rule 1 and 2 seeking to restrain the private respondents from interference in peaceful possession of the petitioner's property. In the plaint the petitioners had claimed possession on the basis of unregistered sale deed entered between Sukhdei and the petitioners. Learned trial court by detailed order rejected the application of the petitioner by means of order dated 3.9.1998.
4. Aggrieved by the order rejecting the application of the petitioner under Order 39 Rule 1 & 2 on 7.9.1998 the petitioner had preferred an appeal before the District Judge. During pendency of the said appeal the petitioner and Sukhdei got the sale deed registered with regard to the disputed property on 20.8.1999 which was registered on the same day. The registered sale deed was sought to be placed on record before the appellate court by means of an application filed by the petitioner under Order 41 Rule 27. The respondents had objected to the said amendment on the ground that it will change the basis of the suit which was filed on the basis of an unregistered sale deed and even the trial court while rejecting the application of the petitioner under Order 39, Rule 1 and 2 had recorded a finding that immovable property could not be transferred on the basis of an unregistered sale deed.
5. District Judge, Unnao by means of the impugned order dated 25.8.1999 has rejected the application under Order 41 Rule 27 on the ground that permitting the petitioner to place the said sale deed on record as evidence would change the basis of the said suit and the appellate court did not find any justification to take the document at the appellate stage as the trial court was also deprived of taking the benefit of the said document while deciding the application under Order 39, Rule 1 and 2 and upon this ground alone he has rejected the application.
6. Learned counsel for the petitioner has submitted that the said sale deed could not have been filed along with the suit as the same was registered only after filing of the suit and also after passing the order under Order 39, Rule 1 and 2. It is only at the stage when the appeal against the rejection order of interim injunction was pending the said sale deed was made available and consequently an application under Order 41, Rule 1 and 2 was filed.
7. Ordinarily, an application for grant of interim injunction is decided on the basis of affidavits and the material documents produced along with the said application without waiting for the evidence which is to be adduced at the relevant stage. Therefore, any relevant document which may have been left out from production initially can be brought on record subsequently with a leave of the court provided it is found that the material for the purpose of effective adjudication of the injunction case. Such material can also be produced in the miscellaneous appeal preferred against the order of the trial court refusing or allowing interim injunction.
8. The Supreme Court considered the aforesaid proposition in the case of Jagdish Prasad Patel v. Shi
The main legal point established in the judgment is the importance of due diligence in producing relevant documents and the discretion of the court in allowing additional evidence under Order 41 Rule....
The court affirmed that additional evidence in appellate proceedings is only permissible if necessary for a just decision, not to remedy deficiencies in the original case.
The court emphasized the requirement for additional evidence to enable it to pronounce judgment or for any other substantial cause, as per the provisions of Order XLI Rule 27 of the C.P.C. and releva....
The discretion to allow additional evidence in appeal should be exercised sparingly and only in exceptional circumstances as per the parameters set out in Order XVI Rule 27 of the Code of Civil Proce....
Appellate court cannot admit additional evidence under Order 41 Rule 27 CPC absent due diligence proof or necessity for judgment; must record reasons; erroneous allowance despite negligence and delay....
Additional evidence – Application for taking additional evidence on record at a belated stage cannot be filed as a matter of right.
Order 41 Rule 27 of Code is a provision which enables party to file additional evidence at first and second appellate stage.
Additional evidence under Order 41 Rule 27 CPC must be considered at the final hearing of an appeal, not prior.
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