Order 41 Rule 27 CPC | First Appellate Court Must Decide Additional Evidence Alongside Appeal : Himachal Pradesh HC

The Himachal Pradesh High Court has set aside an order dismissing an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (CPC), holding that such applications must be decided alongside the main appeal rather than in isolation. The Court emphasized that the First Appellate Court should evaluate the relevance of additional evidence in the context of the appeal's merits, ensuring a comprehensive adjudication. This ruling underscores the procedural safeguards embedded in Order 41 Rule 27 CPC, particularly when new evidence emerges post-decree but before the appeal's resolution.

Background & Facts

The Genesis of the Dispute

The petitioner, Dina Nath, filed a civil suit (Civil Suit No. 95/2013) for possession against the respondent, Amin Chand, before the Court of the learned Senior Civil Judge, Hamirpur, H.P. (the trial Court). The trial Court, by judgment and decree dated 30.03.2019, decreed the suit in favor of the respondent, directing the demolition of a structure on Khasra No. 6406, as per Tatima Ext. OW1/D.

Key Facts

• The petitioner is the adjoining owner of Khasra Nos. 6407 and 6408, measuring 2 kanal 6 marlas, bordering Khasra No. 6406.
• The respondent filed the suit claiming possession of Khasra No. 6406, alleging encroachment by the petitioner.
• A demarcation was conducted on 08.06.2019 in the presence of parties, revealing that the structure in question was part of Khasra No. 6407, not Khasra No. 6406.
• The demarcation report dated 08.01.2019 (though conducted on 08.06.2019) was not confirmed by revenue authorities at the time of the trial Court's decree.

Procedural History

• 30.03.2019: Trial Court decreed the suit for possession in favor of the respondent.
• 2019: The petitioner filed an appeal (Civil Appeal No. 62 of 2019) before the learned Additional District Judge, Hamirpur (First Appellate Court).
• During pendency of the appeal: The petitioner filed an application under Order 41 Rule 27 CPC (CMA No. 655 of 2019) seeking to produce the demarcation report dated 08.06.2019, statement of parties, and Aksh Musabi (revenue records) to prove that the structure was not on the disputed land.
• 08.09.2025: The First Appellate Court dismissed the application under Order 41 Rule 27 CPC, holding that the document sought to be produced was irrelevant and that the application need not be decided alongside the main appeal.
• Present Petition: The petitioner challenged the dismissal of the application under Article 227 of the Constitution of India, arguing that the First Appellate Court erred in dismissing the application without adjudicating its relevance in the context of the appeal.

The Parties' Positions

• Petitioner's Case: The demarcation report and related documents were necessary to adjudicate the appeal fairly, as they demonstrated that the structure was not on the disputed land. The petitioner argued that the First Appellate Court should have decided the application alongside the main appeal, as required by Order 41 Rule 27 CPC.
• Respondent's Case: The respondent contended that the application was rightly dismissed, as the demarcation report was irrelevant and had no bearing on the appeal's merits. The respondent relied on Atlanta Infrastructure Limited v. Delta Marine Company (2021) 20 SCC 593, arguing that the application need not be decided alongside the appeal.

Relief Sought

The petitioner sought:

• Quashing of the First Appellate Court's order dated 08.09.2025 dismissing the application under Order 41 Rule 27 CPC.
• Restoration of the application to its original number for adjudication alongside the main appeal.

The Legal Issue

The central question was whether the First Appellate Court erred in dismissing an application under Order 41 Rule 27 CPC without adjudicating its relevance alongside the main appeal, thereby denying the petitioner an opportunity to produce additional evidence critical to the appeal's resolution.

Arguments Presented

For the Petitioner

The petitioner argued that the First Appellate Court failed to appreciate the necessity of the demarcation report and related documents for a just adjudication of the appeal. The petitioner relied on the Supreme Court's decisions in State of Rajasthan v. T.N. Sahani (2001) 10 SCC 619 and Eastern Equipment & Sales Limited v. Ing. Yash Kumar Khanna (2008) 12 SCC 739, which held that applications under Order 41 Rule 27 CPC must be decided alongside the main appeal to ensure a comprehensive adjudication. The petitioner contended that the demarcation report, if admitted, would demonstrate that the structure was not on the disputed land, thereby altering the appeal's outcome.

For the Respondent

The respondent opposed the petitioner's application, arguing that the demarcation report was irrelevant and had no bearing on the appeal's merits. The respondent relied on Atlanta Infrastructure Limited v. Delta Marine Company (supra), which held that the First Appellate Court was not obligated to decide the application alongside the main appeal. The respondent further argued that the petitioner was estopped from filing the application due to his conduct and that the demarcation report had not been confirmed by revenue authorities.

The Court's Analysis

The Himachal Pradesh High Court examined the provisions of Order 41 Rule 27 CPC, which permits the production of additional evidence in an appellate court if:

• The trial court refused to admit evidence that ought to have been admitted.
• The party seeking to produce additional evidence establishes that it was not within their knowledge or could not have been produced despite due diligence.
• The appellate court requires the document to enable it to pronounce judgment or for any other substantial cause.

The Court noted that the petitioner's application sought to produce a demarcation report and related documents to prove that the structure was not on the disputed land. The Court observed that the First Appellate Court dismissed the application without adjudicating its relevance in the context of the appeal, which was contrary to the Supreme Court's decisions in State of Rajasthan v. T.N. Sahani (supra) and Eastern Equipment & Sales Limited v. Ing. Yash Kumar Khanna (supra).

"It may be pointed out that this Court as long back as in 1963 in K. Venkataramiah v. Seetharama Reddy. AIR 1963 SC 1526, pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner."

The Court held that the First Appellate Court should have decided the application alongside the main appeal, as the demarcation report could potentially enable the Court to pronounce judgment in a more satisfactory manner. The Court distinguished Atlanta Infrastructure Limited v. Delta Marine Company (supra) on the ground that the controversy in that case pertained to the encashment of a bank guarantee, whereas the present case involved a demarcation report critical to the appeal's resolution.

The Verdict

The Himachal Pradesh High Court allowed the petition, setting aside the First Appellate Court's order dated 08.09.2025 dismissing the application under Order 41 Rule 27 CPC. The Court directed the First Appellate Court to:

• Revive the application to its original number (CMA No. 655 of 2019).
• Decide the application alongside the main appeal (Civil Appeal No. 62 of 2019) on merits within three months from the date of receipt of the order.

The Court clarified that its observations were confined solely to the disposal of the present petition and did not reflect any opinion on the merits of the case pending before the First Appellate Court.

What This Means For Similar Cases

Applications Under Order 41 Rule 27 CPC Must Be Decided Alongside the Main Appeal

Practitioners must ensure that applications under Order 41 Rule 27 CPC are not dismissed in isolation but are decided alongside the main appeal. The appellate court must evaluate the relevance of additional evidence in the context of the appeal's merits to ensure a comprehensive adjudication. Failure to do so may result in the dismissal of the application being set aside on judicial scrutiny.

The Appellate Court's Discretion Is Not Absolute

• The appellate court's discretion under Order 41 Rule 27 CPC is not absolute and must be exercised judiciously.
• The court must record reasons for admitting or rejecting additional evidence, ensuring transparency and fairness in the adjudicatory process.
• The court's decision to admit additional evidence must be guided by the principles laid down in State of Rajasthan v. T.N. Sahani (supra) and Eastern Equipment & Sales Limited v. Ing. Yash Kumar Khanna (supra).

Procedural Safeguards in Civil Appeals

• Practitioners should proactively seek to produce additional evidence under Order 41 Rule 27 CPC if it is critical to the appeal's resolution.
• The appellate court must ensure that the production of additional evidence does not prejudice the other party's rights and is justified by the circumstances of the case.
• The court's decision to admit additional evidence must be based on a thorough evaluation of its relevance and necessity for a just adjudication.

Key Takeaways for Practitioners

• Always file applications under Order 41 Rule 27 CPC alongside the main appeal to avoid dismissal on procedural grounds.
• Highlight the relevance of additional evidence to the appeal's merits, ensuring that the court records its reasons for admitting or rejecting the evidence.
• Rely on precedents such as State of Rajasthan v. T.N. Sahani (supra) and Eastern Equipment & Sales Limited v. Ing. Yash Kumar Khanna (supra) to strengthen arguments for the admission of additional evidence.
• Ensure compliance with procedural safeguards to avoid the dismissal of applications on technical grounds.

Impact on Future Litigation

This judgment reinforces the procedural safeguards embedded in Order 41 Rule 27 CPC, ensuring that appellate courts do not dismiss applications for additional evidence in isolation. Practitioners can leverage this precedent to argue for the admission of critical evidence in appeals, thereby enhancing the fairness and comprehensiveness of the adjudicatory process.