Order 41 Rule 27 CPC | Fresh Evidence Cannot Be Relied Upon Against Ex Parte Party Without Notice or Cross-Examination : MP HC

The Madhya Pradesh High Court has reaffirmed that appellate courts cannot reverse trial court findings based on fresh evidence submitted under Order 41 Rule 27 of the Code of Civil Procedure when the opposing party is ex parte, unless strict procedural safeguards are followed. This judgment clarifies the non-negotiable requirements of notice, opportunity to rebut, and cross-examination even in ex parte appeals.

Background & Facts

The Dispute

The dispute concerns possession of land bearing Survey No. 180 in Bagli, District Dewas, where the appellant, Smt. Manubai, has operated a temporary Gumti (small stall) for 30 to 40 years. The respondent, Kurisingal and others, claimed ownership of the land and sought possession and permanent injunction against the appellant.

Key Facts

• The appellant has been in continuous, open, and peaceful possession of the Gumti since at least the 1980s.
• In 2001, the Tehsildar issued a notice under Section 250 of the M.P. Land Revenue Code, 1959, directing the appellant to vacate the land.
• The appellant challenged the Tehsildar’s order before the Sub-Divisional Officer (SDO), who upheld it.
• The appellant further appealed to the Additional Collector, Ujjain, who remanded the matter to the Tehsildar for reconsideration.
• In 2018, the respondent filed a civil suit for recovery of possession and permanent injunction.
• The trial court, after recording evidence from both parties, dismissed the suit on 31.05.2024, holding that the plaintiff failed to prove title.
• The respondent filed a Regular Civil Appeal (RCA No. 08/2024) before the 2nd District Judge, Tehsil Bagli.

Procedural History

• 13.09.2024: Appeal proceeded ex parte against the appellant based on a report of refusal to accept notice.
• 23.06.2024: Respondent filed first application under Order 41 Rule 27 CPC, which was dismissed on 21.04.2025 for non-pressing.
• 21.04.2025: Respondent filed a fresh application under Order 41 Rule 27 CPC, attaching a certified copy of a registered sale deed.
• 17.06.2025: First Appellate Court allowed the application under Order 41 Rule 27 CPC without issuing notice to the appellant or granting opportunity to rebut.
• 19.06.2025: First Appellate Court passed judgment reversing the trial court’s decree and granted possession and injunction to the respondent, marking the sale deed as Exhibit P/13.
• 07.05.2026: Second Appeal admitted by Coordinate Bench on two substantial questions of law.
• 22.06.2026: Arguments heard.
• 25.06.2026: Judgment pronounced.

The Parties' Positions

For the Appellant

• No notice was ever served or tendered to her despite the appeal being proceeded ex parte.
• The demarcation of Survey No. 180 was never conducted, making the claim of encroachment speculative.
• The application under Order 41 Rule 27 CPC was filed and allowed without notice, rebuttal, or cross-examination.
• The sale deed, though registered, is not conclusive proof of title and can be rebutted.
• The appellate court erred in reversing the trial court’s finding without affording procedural fairness.

For the Respondent

• Notice was duly issued and the appellant refused to accept it, justifying ex parte proceedings.
• The sale deed is a registered document and therefore admissible as evidence under Section 47 of the Indian Evidence Act.
• The appellate court was justified in allowing the application under Order 41 Rule 27 CPC and relying on the document to reverse the trial court’s finding.
• No procedural irregularity occurred as the document was certified and properly filed.

Relief Sought

The appellant seeks setting aside of the First Appellate Court’s judgment and decree dated 19.06.2025, restoration of the trial court’s dismissal of the suit, and dismissal of the respondent’s claim in its entirety.

The Legal Issue

The central question was whether an appellate court may allow an application under Order 41 Rule 27 of the CPC and rely on the additional evidence filed therein to reverse a trial court’s finding when the opposing party is ex parte and has not been given notice, opportunity to file a reply, or chance to cross-examine.

Arguments Presented

For the Appellant

The appellant’s counsel relied on settled principles that Order 41 Rule 27 CPC permits additional evidence only under strict conditions: (1) the evidence must be relevant and not previously available despite due diligence; (2) the application must be decided at the time of final hearing; and (3) the opposite party must be given notice and opportunity to rebut. She cited Smt. Sushila Devi v. Smt. Kamla Devi and Rajendra Singh v. Smt. Savitri Devi to emphasize that ex parte status does not waive fundamental rights to fair hearing. She argued that the sale deed, though registered, is not a public document and can be challenged on grounds of fraud, coercion, or lack of consideration.

For the Respondent

The respondent’s counsel contended that the appellant’s refusal to accept notice absolved the court of further obligation. He argued that a registered sale deed is self-authenticating and its admission under Order 41 Rule 27 CPC does not require remand. He relied on K. Srinivasulu v. K. Srinivas to assert that appellate courts have discretion to admit such documents if they go to the root of the matter. He maintained that the trial court’s finding was contrary to documentary evidence and the appellate court was justified in correcting it.

The Court's Analysis

The Court examined the procedural sequence and found that the First Appellate Court committed a grave violation of natural justice. The application under Order 41 Rule 27 CPC was filed on 21.04.2025, allowed on 17.06.2025, and the judgment was delivered on 19.06.2025 - all without any notice to the appellant. The Court emphasized that ex parte proceedings do not negate the right to be heard on new evidence.

"It is no more res-integra that if fresh documents are filed in the appeal and the respondents are ex-parte, it is essential for the Appellate Court to issue fresh notice on the application filed under Order 41 Rule 27 of CPC to the respondents and grant an opportunity to the respondents to submit their reply on the issue of additional evidence."

The Court further held that the application under Order 41 Rule 27 CPC must be decided at the time of final hearing, not at a motion stage. Allowing the application separately and then relying on it to reverse the trial court’s finding was procedurally impermissible. The Court noted that even registered documents like sale deeds are not immune to rebuttal and must be tested through cross-examination.

"Sale deed is not a public document and a party to the suit may rebut the evidence adduced by the plaintiff through sale deed. This opportunity was not granted to the appellant."

The Court rejected the respondent’s argument that refusal to accept notice absolves the court of duty. It held that the burden lies on the court to ensure due process, not on the party to actively appear. The failure to remand the matter for proper trial on the new evidence rendered the appellate judgment unsustainable.

The Verdict

The appeal is partly allowed. The judgment and decree of the First Appellate Court dated 19.06.2025 are set aside. The matter is remanded to the trial court with directions: (1) the respondent shall prove the sale deed marked as Exhibit P/13 through evidence; (2) the appellant shall be granted full opportunity to cross-examine and rebut the document; (3) no other evidence shall be permitted beyond the sale deed and its rebuttal; and (4) the trial court shall decide the suit afresh without being influenced by prior judgments. No order as to costs.

What This Means For Similar Cases

Procedural Fairness Trumps Documentary Convenience

• Practitioners must not assume that registered documents automatically override trial court findings in appellate proceedings.
• Even if evidence is documentary and seemingly conclusive, the right to cross-examine cannot be waived, especially against ex parte parties.

Ex Parte Status Does Not Waive Natural Justice

• Courts cannot proceed on the assumption that refusal to accept notice equates to waiver of hearing rights.
• Appellate courts must issue fresh notice for any application under Order 41 Rule 27 CPC, regardless of prior ex parte status.

Applications Under Order 41 Rule 27 CPC Must Be Decided at Final Hearing

• Applications under Order 41 Rule 27 CPC must be heard and decided during the final hearing of the appeal, not at a motion stage.
• Separate orders on such applications, followed by immediate judgment, violate the procedural mandate of CPC.

Remand Is Mandatory When Fair Hearing Is Denied

• When an appellate court relies on new evidence without affording rebuttal opportunity, remand to the trial court is the only lawful remedy.

• The appellate court cannot act as a trial court by marking documents and deciding merits without proper evidence recording.

• Always file objections to ex parte proceedings when new evidence is introduced without notice.

• In appeals, insist on a separate hearing on Order 41 Rule 27 applications and demand cross-examination rights.

• If a court allows documents without notice, challenge the judgment on grounds of violation of Article 21 and Section 14 of CPC.