TaxTMI 
TaxTMI 
2024 (10) TMI 1790
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.... 3.1 The petitioners are the original defendant nos.1 to 3, whereas the respondent no.1 is the original plaintiff and the respondent no.2 is the original defendant no.4. 3.2 The respondent no.1 had filed Special Civil Suit No.240/2008 before the court of the learned Principal Civil Judge, Ahmedabad (Rural) against the petitioners and the respondent no.2 herein inter alia praying for direction upon the petitioners - original defendants to hand over vacant and peaceful possession of Plot No.1 admeasuring 61 Sq. Yards. (535 Sq. Mtrs.) in The Khurshid Co. Op. Ho. Soc. Ltd., situated on the land bearing Survey No.728 of moje Vejalpur, Taluka : City, District : Ahmedabad (hereinafter referred to as "property in question" for short) and also prayed for cancellation of the sale deed dated 29.12.2006 executed in favour of Nafisha Javed Saiyed as well as sale deed dated 09.04.2008 executed in favour of Asarafjaha Habibbhai declaring it to be null and void ab initio and also sought permanent injunction. 3.3 On filing of the suit, notice came to be issued upon the original defendants and in pursuance to the issuance of notice, the original defendants have appeared th....
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....e, Mr. Parv Mehta for the respondent no.1. 5. Learned advocate, Mr. Munshi for the petitioners submitted that the respondent no.1 had filed suit against the petitioners herein before the learned civil court, Ahmedabad inter alia praying for cancellation of the sale deeds as also for direction for handing over the possession of the property in question, which was decreed in favour of the respondent no.1, against which, Regular Civil Appeal No. 1/2022 has been preferred before the learned District Court, Ahmedabad (Rural) challenging the said judgment and decree and pending said appeal, an application, Exh.18 was preferred under Order XLI, Rule 27 of the CPC seeking permission to produce addition documents on record, however without properly considering the facts of the case, the learned Judge has partly allowed, whereby one document is permitted to be placed on record, whereas permission qua other document has been rejected and the said order is assailed in the present petition. Learned advocate submitted that while passing impugned order, the learned Judge has observed that the defendants have miserably failed to prove that the executor of the registered sale deed had got power ....
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....d, permission from the competent authority is required to be obtained but the defendants have failed to produce certificate in that regard and in absence of same, the registered sale deed cannot be executed. Learned advocate submitted that in fact, the proceedings have been launched before the competent authority for the purpose of getting certificate of no disturbed area and recently in the year 2022, the competent authority had allowed the said application in favour of the petitioners, therefore by no stretch of imagination, it can be said that the said document was not lying with the petitioners and issue was pending before the competent authority at large for adjudication, therefore despite their best efforts, the petitioners could not be able to produce the said documents and as soon as the order is passed, immediately an application is preferred. 7. Learned advocate has put reliance upon the decision of this Hon'ble Court in case of Mukulbhai Rajendra Thakor Vs. Upendrabhai Anupam Joshi, reported in 2018 (3) GCD 2230 and submitted that the Hon'ble Court has opined that the document produced along with an application under Order XLI, Rule 27 of the CPC for additional eviden....
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....ppeal, the petitioners could have produced those documents as at that relevant point of time, he was aware about the findings and observation of the Hon'ble Court, which they have sought to produce by filing an application for additional documents but they remained silent for longer period of time without any justifiable cause and, thereafter in the month of December, 2022, the parties have submitted written submissions but due to Covid_2019, the hearing of the appeal could not be proceeded further but in the month of December, 2023, the application, Exh.18 seeking permission to produce additional documents had been preferred by the petitioners with a sole intent to fill up the lacuna and delay the proceedings. He read the provision of the Order XLI, Rule 27 of the CPC and submitted that it is the settled proposition of law that the documents, which were not well within the knowledge of the parties concerned and/or were not available in the custody of the parties at the time of leading evidence subsequently and after the pronouncement of the judgment and decree, discovery of new document has come on surface, which affects the core issue involved in the matter, in that event, the ap....
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....he case, it is found out that in the year 2008, Special Civil Suit No.240/2008 came to be filed by the respondent no.1 before the court of the learned Principal Civil Judge, Ahmedabad (Rural) against the petitioners and the respondent no.2 herein inter alia praying for direction upon the petitioners - original defendants to hand over vacant and peaceful possession of the property in question and also for cancellation of the sale deed dated 29.12.2006 executed in favour of the petitioner no.2 as well as sale deed dated 09.04.2008 executed in favour of petitioner no.3 it to be null and void ab initio and also sought permanent injunction and the said suit was decree in the year 2021 in favour of the respondent no.1, against which, Regular Civil Appeal No.1/2022 came to be filed by the petitioners before the learned District Court, Ahmedabad (Rural), however in the meantime, the petitioners came to know about the observations made by the learned civil judge while passing order in plaint with regard to the documents, which are sought to be produced on record and upon coming to know about the same, an application has been preferred under Order XVI, Rule 27 of the CPC and sought permissio....
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....4. 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. However, certain exceptions are carved out therein, whereby it is provided that if (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. Now if we look at the findings given and conclusion arrived at by the learned Judge while pa....
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....n of Greater Bombay V/s. Lala Pancham & Ors., AIR 1965 SC 1008; Soonda Ram & Anr. V/s. Rameshwaralal & Anr., AIR 1975 SC 479; and Syed Abdul Khader V/s. Rami Reddy & Ors., AIR 1979 SC 553). 37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. V/s. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798). 38. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence ....
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....e additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule 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. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronouncement judgment or for any other substantial cause of like nature. 8. As observed and held by this Court in the case of A. Andisamy Chettiar v. A. Subburaj Chettiar, reported in (2015) 17 SCC 713, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant h....
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.... may be allowed to be permitted on record, such application may be allowed. 18. At this stage, it would also be fruitful to refer to the decision of judgment of the Division Bench of this Court in the case of Executive Engineer, Gujarat Electricity Board, Now Gujarat State Electricity Corporation Limited Vs. Legal Heirs of Koyabhai Budhabhai Parmar, reported in 2018 (0) AIJEL-HC 239917, more particularly Paragraph Nos.15 to 19 thereof, reads as under : "15 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. However, certain exceptions are carved out therein, whereby it is provided that if (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 b....
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....sition to pronounce the judgment. 18. The learned advocate for the appellant has placed reliance upon the expression "or for any other substantial cause", to submit that the present case would fall within the ambit of such expression and therefore, the application for additional evidence deserves to be allowed. In this regard it may be noted that before the reference court, the appellant who is the acquiring body, has not adduced any documentary evidence in support of its case. Moreover, the Special Land Acquisition Officer has also not stepped into the witness box. Therefore, no evidence worth the name has been adduced by the acquiring body or the Special Land Acquisition Officer for the purpose of assisting the reference court to determine the market value of the lands in question. Insofar as the expression "or for any other substantial cause" is concerned, the Supreme Court in Union of India v. Ibrahim Uddin (supra) has held that the inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substan....