Appellate Court may Admit Additional Evidence and Order Remand to Prevent Miscarriage of Justice and Resolve Inherent Lacunae.

The respondents No. 1 and 2 (plaintiffs) filed a suit for declaration and permanent injunction, claiming ownership of land at Survey No. 797 through a 1970 sale deed executed by one Dalchandra to their father, Rambharose

They sought to declare a subsequent 2004 sale deed in favor of the appellant (defendant) as nullity

The trial court dismissed the suit on 31.10.2022 because the plaintiffs failed to produce the original 1970 sale deed or lead secondary evidence under Section 65 of the Evidence Act

On appeal, the plaintiffs filed an application under Order 41 Rule 27 CPC to produce the original 1970 deed, claiming it was previously misfiled in a different civil suit

The Lower Appellate Court allowed the application, set aside the trial court’s decree, and remanded the matter for a fresh trial

1. Whether the Lower Appellate Court rightly allowed the application for additional evidence under Order 41 Rule 27 CPC

2. Whether the order of remand passed by the Lower Appellate Court under Order 41 Rule 23A CPC can be sustained

The court applied Order 41 Rule 27 of the CPC, which permits additional evidence if the court requires it to pronounce judgment or for any "substantial cause"

It followed Union of India v. Ibrahim Uddin (2012), which mandates that such power be used sparingly and only when an inherent lacuna in the record prevents a satisfactory judgment

Regarding proof of execution, the court relied on Section 68 of the Indian Evidence Act and Hans Raji v. Yosodanand (1996), establishing that a sale deed does not legally require attestation; thus, the rigid requirements for calling attesting witnesses do not apply

Finally, the court applied Order 41 Rule 23A CPC regarding the power of remand for retrial

The High Court observed that the Lower Appellate Court exercised its discretion judicially by finding that the 1970 sale deed was essential to resolve the core controversy

The court rejected the appellant's argument that the remand allowed the plaintiffs to "fill a lacuna," noting that the document was in existence but misfiled in record Room Case No. 57A/75; its absence had led the trial court to disbelieve the entire claim despite a certified copy being on record

The High Court clarified that since a sale deed is governed by Section 54 of the Transfer of Property Act and not Section 68 of the Evidence Act, the plaintiffs were not required to have produced attesting witnesses previously

The court found that the production of the original deed enabled the trial court to consider the applicability of Section 90 of the Evidence Act (presumption as to old documents) and recalculate the limitation period afresh

The court concluded that the conditions of Order 41 Rule 27 and Rule 23A were satisfied and that no prejudice was caused to the appellant as both sides would have the opportunity to lead evidence and rebuttal on the "new" document

The miscellaneous appeal was dismissed, and the order of remand for a fresh decision was upheld