Whether court can permit the production of additional evidence in Miscellaneous appeal?

  In the case of Rajesh Jaiswal and another Y.S. Anuj Shah and another reported in 2013 (3) ALJ 67, which was also a case arising out of the matter of grant of temporary injunction and an application for additional evidence filed in the Misc. Appeal was rejected, this Court held that Order 43 Rule 2 C.P.C. provides that Order 41 C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order 43 Rule 1. It means that Order 41 Rule 27 C.P.C. can be applied to Misc. Appeals as well and there is no bar in taking new material on record at the appellate stage in the appeal arising out of orders. The appellate court has full authority to accept affidavits/documents in addition to those filed in the court below if necessary for the purposes of deciding the injunction matter subject to certain limitations. Paragraph nos. 5 and 6 of Rajesh Jaiswal case (supra) are being reproduced hereunder:-

"5. Order XLIII. Rule 2. C.P.C. provides that rules of Order XLI, C.P.C. shall apply to appeals from orders also which means appeals preferred against orders as specified under Section 104 read with Order XLIII, Rule 1 including one arising from grant or refusal of interim injunction. It means Order XLI, Rule 27, C.P.C. can be applied to miscellaneous appeals as well and there is no bar in taking new material on record at the appellate stage in appeals arising out of orders. Therefore, also the appellate Court has full authority to accept affidavits/documents in addition to those filed in the Court below, if necessary for the purposes of deciding the injunction matter subject to certain limitations."

"6. In the above legal scenario the appellate Court below is not right in refusing to accept the documents in appeal and erred in refusing them on the ground that the provisions of Order XLI, Rule 27, C.P.C. are not applicable. In view of the above, the impugned order dated 24.9.2012 is unsustainable and is hereby quashed and the Court below is directed to consider the application 15C afresh and to decide the appeal itself in accordance with law, as expeditiously as possible, preferably within a period of four months from the date of production of a certified copy of this order." {Para 46}

47. In the case of Bal Krishna versus Virendra Kumar Misc. Single No. 15947 of 2017, decided on 5/7/2019 this Court considered the Full Bench Judgment in the case of Zila Parishad (supra) and in the case of Rajesh Jaiswal (supra) and held that the additional evidence is permissible to be filed in Misc. Appeal.

Allahabad High Court

Dr. Chandra Deo Tyagi vs Additional District Judge Court ... on 10 July, 2020

Bench: Ravi Nath Tilhari

Read full Judgment here: Click here

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