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

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. 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". 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. Justice Joshi then observed “…I am of the considered opinion that the ingredients of Order XLI Rule 27 of the CPC, as indicated in the above-mentioned decision, have not been satisfied by the petitioners in the application impugned filed before the learned Appellate Court.” The Court further noted that the petitioners have not provided sufficient evidence in their application to convince the Appellate Court that the documents are necessary for the pronouncement of the judgment.