Point of Law: Section 35 of Act, 2016 provides powers of Authority to call for information, conduct investigations.

JUDGMENT :

This Miscellaneous Second Appeal has been filed under Section 58 of the Real Estate (Regulation and Development) Act, 2016 (for short, 'the Act, 2016' hereinafter) r/w Section 100 of the Code of Civil Procedure (for short 'the C.P.C.' hereinafter). The appellant is the respondent in Complaint No.17/2020 before the Authority and in REFA No.28/2023 before the Appellate Tribunal.

2. This appeal has been filed, challenging order in I.A.No.158/2023 in REFA No.28/2023, dated 3.10.2023, passed by the Kerala Real Estate Appellate Tribunal, Ernakulam.

3. Heard the learned counsel for the appellant on admission.

4. I have perused the relevant documents placed by the learned counsel for the appellant and the statutory provisions.

5. In this matter, the appellant in REFA No.28/2023, filed I.A.No.158/2023 and sought for appointment of a Commission, for the purpose of collecting some information in order to decide the matter in controversy between the parties.

6. The respondent therein, who is the appellant herein, opposed the application, mainly on the ground that materials sought to be collected, by appointing Commission, would come under the purview of Order XLI Rule 27 of the C.P.C. and the Appellate Tribunal had no such power.

7. After considering the rival contentions raised, the Appellate Tribunal negatived the contention of the respondent therein and found in paragraph No.7 of the order that, in order to decide the very material issue, the Tribunal would require certain materials, as indicated in paragraph No.24 of the order passed by the Tribunal on 24.5.2022 and in such view of the matter, a Commission was appointed to get details of the said vital materials.

8. At the time of hearing, the learned counsel for the appellant would submit that, appointment of a Commission by the Appellate Tribunal, is not legally permissible and the same would come within the ambit of Order XLI Rule 27 of the C.P.C. According to the learned counsel for the appellant, in order to adduce additional evidence in appeal, the mandate of Order XLI Rule 27 of the C.P.C. should have been complied. In this connection, the learned counsel placed a decision in Raveendranadhan and Others v. State of Kerala and Another reported in [2017 (1) KHC 302], referring paragraph No.18 of the above judgment. Paragraph No.18 is as under:

“18. It is well settled that normally the Appellate Court should not travel outside the records produced before the Trial Court and cannot take any evidence in appeal. O.41 R.27 of CPC enables the Court to take additional evidence only in the circumstances specifically enumerated therein. The first point to be established by a person seeking introduction of additional evidence is that even after due diligence such evidence was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed against was passed. Therefore, the Appellate Court is entitled to call for fresh evidence only on satisfaction of the conditions laid down in the rules. Here, it is to be noted that in the appeal memorandum, there is no mention that the documents produced along with the petition were not within their knowledge or could not produce before the Trial Court even after exercise of due diligence. It is also well established that the power under O.41 R.27 of CPC should be used sparingly and only if the party is able to establish that even after their best efforts, such additional evidence could not be adduced at the first instance and the documents are relevant for deciding the issue. Here it is to be noted that there is no whisper regarding the same in the appeal memorandum, but they have simply produced the documents, without any satisfactory explanation for not having produced it before the Trial Court. So, it is not just and proper to accept Exts.A1 to A6 produced along with the appeal memorandum in evidence as prayed for by the appellants. Moreover, most of the documents have been obtained only