Madhya Pradesh HC: Fresh Notice to Ex Parte Party Mandatory Before Reversing Decree Based on New Evidence

The Madhya Pradesh High Court has set aside a judgment of reversal passed by a First Appellate Court, ruling that admitting fresh evidence under Order 41 Rule 27 of the Code of Civil Procedure against an ex parte party without issuing fresh notice is a procedural illegality that violates the principles of natural justice.

Justice Vinay Saraf, while hearing a Second Appeal, emphasized that even when a party has been proceeded against ex parte, the introduction of new documents at the appellate stage necessitates a fresh opportunity for the opposing party to rebut the evidence. The Court observed that additional evidence should ideally be decided alongside the final hearing of the appeal rather than at a motion stage.

First Appellate Court's Procedural Lapses Under Scrutiny

The High Court found that the First Appellate Court erred by allowing an application for additional evidence and marking a sale deed as an exhibit without providing the appellant an opportunity for cross-examination or rebuttal. The Court noted that since the document was not a public document, its authenticity and contents could be challenged.

The Court, in its reasoning, observed: "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. It is also no more res-integra that the application moved under Order 41 Rule 27 of CPC ought to have been decided along with the appeal and the same should not be decided separately as decided by the First Appellate Court in the instant case."

Directions Issued to the Trial Court

The Court has the following directions:

"The judgment and decree passed by the 2nd District Judge, Tehsil Bagli, District Dewas in RCA No.08/2024 decided on 19.6.2025 are set aside to the extent that the case is remanded to the Trial Court with the opportunity to the respondent/plaintiff to prove the document filed along with the application under Order 41 Rule 27 of CPC by adducing evidence and the Trial Court is directed to afford opportunity to the appellant/defendant to cross examine the plaintiff and to provide opportunity to rebut the said evidence. Thereafter the trial court shall pass the fresh judgment on merits without being influenced by the earlier judgment delivered by the trial Court and the judgment delivered by the First Appellate Court."

Background:

The dispute originated from a temporary structure (Gumti) placed by the appellant on land at Survey No. 180 in Bagli, Dewas. While the appellant claimed to have operated from the site for decades, the respondent initiated proceedings for possession and injunction. Initially, the Trial Court dismissed the respondent's suit, finding they had failed to prove title. However, in the First Appeal, the respondent moved an application under Order 41 Rule 27 of the Code of Civil Procedure to bring a sale deed on record. The First Appellate Court, proceeding ex parte against the appellant, allowed the application, marked the document as Exhibit P/13, and subsequently reversed the Trial Court's decree to grant possession to the respondent. The appellant challenged this in the High Court, arguing that no fresh notice was issued regarding the additional documents and no opportunity for cross-examination was granted.

Case Details:
Case No.: SECOND APPEAL No. 1966 of 2025
NeutralCitation: 2026:MPHC-IND:16726
Case Title: SMT. MANUBAI Versus KURISINGAL AND OTHERS
Appearances:
For the Petitioner(s): Ms. Isha Sharma - Advocate
For the Respondent(s): Shri Ashok Kumar Shrivastava - Advocate

Source: 2026 CaseBase(MP) 67