Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 535

SUPREME COURT OF INDIA
Uday Umesh Lalit, Indu Malhotra, JJ.
Jiten K. Ajmera & Anr. – Appellant
Versus
M/s Tejas Cooperative Housing Society – Respondent
Civil Appeal No. 4628 of 2019 (Arising Out of SLP(Civil) No. 26755 of 2018)
Decided on : 06-05-2019

Advocates Appeared:
For the Appellant :Mr. P. N. Puri, Advocate, Mrs. Reeta Dewan, Puri, Advocate and Mr. Abhishek Puri, Advocate
For the Respondent:Mrs. V. D. Khanna, Advocate.

IMPORTANT POINTS
(1) Under Order XLI Rule 27, CPC a party can produce additional evidence at appellate stage if it establishes that notwithstanding exercise of due diligence, such evidence was not within its knowledge.
(2) Necessary documents can always be adduced as additional evidence.

Headnote:(A) Civil Procedure Code, 1908 – Order XLI Rule 27 – Additional evidence – Under Order XLI Rule 27, CPC a party can produce additional evidence at appellate stage if it establishes that notwithstanding exercise of due diligence, such evidence was not within its knowledge, or could not even after exercise of due diligence, be produced by it at the time when decree appealed against was passed. (Para 3.2)
       (B) Civil Procedure Code, 1908 – Order XLI Rule 27 – Additional evidence – Consumer dispute – Additional documents sought to be produced by Appellants did not exist while matter was before District Forum – Documents in question have come into existence after Appeal was filed before State Commission – Appellants could not have produced the documents before District Forum – These documents are of relevance to establish that Appellants are not in a position to obtain Occupancy Certificate from MCGM until unauthorized structures which are in violation of approved plans, are removed – In absence of these documents, Appellants would not be in a position to substantiate their case that they are unable to obtain Occupancy Certificate and comply with directions issued by District Forum – State Commission was in error by rejecting Application filed by Appellants under Order XLI Rule 27, CPC by merely stating that documents are not necessary – Said Order is an unreasoned one – State Commission must have taken a holistic view of the matter – National Commission has b Impugned Order affirmed Interim Order passed by State Commission – Impugned orders set aside and matter remitted to State Commission to take additional documents on record and decide Appeal on merits in accordance with law. (Paras 2.6, 3.1,3.3, 4, 5 and 6)
       Facts of Case:
       Present Civil Appeal has been filed to challenge Order dated 16.03.2018 passed in Revision Petition No. 175 of 2016 by National Consumer Disputes Redressal Commission. Revision Petition was filed to challenge Interim Order dated 10.12.2015 passed by State Commission Consumer Disputes Redressal Commission, Mumbai in First Appeal No. 85 of 2013. Appellants herein had filed Application under Order XLI Rule 27, CPC for permission to file additional documents, which have come into existence after filing of Appeal before State Commission.
       Findings of Court:
       State Commission was in error by rejecting Application filed by Appellants under Order XLI Rule 27, CPC by merely stating that documents are not necessary. Said Order is an unreasoned one. State Commission must have taken a holistic view of matter.
       Result : Civil Appeal allowed.

JUDGMENT

Indu Malhotra, J.

Leave granted.

1. The present Civil Appeal has been filed to challenge the Order dated 16.03.2018 passed in Revision Petition No. 175 of 2016 by the National Consumer Disputes Redressal Commission (hereinafter referred to as "the National Commission"). The Revision Petition was filed to challenge the Interim Order dated 10.12.2015 passed by the State Commission Consumer Disputes Redressal Commission, Mumbai(hereinafter referred to as "the State Commission") in First Appeal No. 85 of 2013. The Appellants herein had filed an Application under Order XLI Rule 27, CPC for permission to file additional documents, which have come into existence after the filing of the Appeal before the State Commission.

2. The background facts in which the present Civil Appeal has been filed are briefly stated as under:

2.1. The Appellants are the sons of Late Smt. Mrudula K. Ajmera who was the owner and in possession of a plot of land bearing CTS No. 284/38, Military Road, Marol Village, Andheri (East), Mumbai - 400059.
The Late Smt. Mrudula K. Ajmera constructed a building viz. Tejas Apartments comprising of Ground plus 7 Upper Floors. The flats were sold to various purchasers on ownership basis.
The flat owners formed the Respondent - Housing Society viz. M/s Tejas Co-operative Housing Society.
2.2. The Respondent - Housing Society filed Consumer Complaint No. 570 of 2008 before the District Consumer Disputes Redressal Forum, Mumbai Sub-District. It was alleged that the Appellants /Opposite Parties had failed to supply service amenities to the members of the Respondent - Housing Society, failed to obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed in favour of the society.
The District Forum partly allowed the Consumer Complaint vide Order dated 27.02.2013. It was declared that the Appellants had failed to supply the service amenities to the Respondent - Housing Society, and obtain the Occupancy Certificate from the Municipal Corporation, and execute the Conveyance Deed.
The District Forum directed the Appellants to obtain the Occupancy Certificate for the building within 3 months from the date of judgment. If the Appellants failed to obtain the Occupancy Certificate within the period specified, they would be liable to pay Rs. 500/- per day to the society.
The Appellants were further directed to execute the Conveyance Deed in favour of the Respondent -Housing Society within 6 months from the date of judgment; refund the amount of Rs. 1,80,600/-collected from the society members towards service amenities; refund the amount of Rs. 1,15,368/-incurred by the society members towards formation of the society; and refund the amount of Rs. 1,98,198/- paid by the society members towards water taxes.
2.3. Aggrieved by the aforesaid Order passed by the District Forum, the Appellants filed First Appeal No. 85 of 2013 before the State Consumer Disputes Redressal Commission, Maharashtra.
The said Appeal is presently pending before the State Commission.
2.4. On 15.01.2014, the Appellants/Developers filed an Application under Order XLI Rule 27, CPC for leading additional evidence before the State Commission in the pending Appeal.
The Appellants requested for permission to produce two documents which had come into existence after the filing of the Appeal i.e. (i) Letter dated 08.08.2013 from their Architect to the Executive Engineer, Municipal Corporation of Greater Mumbai ("MCGM") enclosing the plans of all the floors, and requested for issuance of the Occupancy Certificate; (ii) Reply by the MCGM dated 26.08.2013, wherein it was stated that as per the visit done, there was unauthorized enclosure of elevation features by occupants which was violative of the last approved plans dated 02.07.2001. The Appellants were directed to remove the unauthorized structures along with compliance of requisite conditions.
2.5. The State Commission vide Interim Order dated 10.12.2015 held that these documents were not neces

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2019 Supreme(SC) 535

SUPREME COURT OF INDIAUday Umesh Lalit, Indu Malhotra, JJ.Jiten K. Ajmera & Anr. – AppellantVersusM/s Tejas Cooperative Housing Society – RespondentCivil Appeal No. 4628 of 2019 (Arising Out of SLP(Civil) No. 26755 of 2018)Decided on : 06-05-2019

IMPORTANT POINTS(1) Under Order XLI Rule 27, CPC a party can produce additional evidence at appellate stage if it establishes that notwithstanding exercise of due diligence, such evidence was not within its knowledge.(2) Necessary documents can always be adduced as additional evidence.

Cases Referred (1)

SUPREME COURT OF INDIA
Uday Umesh Lalit, Indu Malhotra, JJ.
Jiten K. Ajmera & Anr. – Appellant
Versus
M/s Tejas Cooperative Housing Society – Respondent
Civil Appeal No. 4628 of 2019 (Arising Out of SLP(Civil) No. 26755 of 2018)
Decided on : 06-05-2019

IMPORTANT POINTS
(1) Under Order XLI Rule 27, CPC a party can produce additional evidence at appellate stage if it establishes that notwithstanding exercise of due diligence, such evidence was not within its knowledge.
(2) Necessary documents can always be adduced as additional evidence.