Supreme Court of India
JITEN K. AJMERA & ANR. versus M/S TEJAS CO-OPERATIVE HOUSING SOCIETY on 6 May 2019
JITEN K. AJMERA & ANR.
v.
M/S TEJAS CO-OPERATIVE HOUSING SOCIETY
(Civil Appeal No. 4628 of 2019)
MAY 6, 2019
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908: Or XLI, r. 27 – Production ofadditional evidence at the appellate stage – Application byappellants for bringing additional evidence on record, along withthe documents sought to be produced in the pending appeal –Rejected by the State Commission as also National Commission –On appeal, held: The documents came into existence after the appealwas filed before the State Commission – They are of relevance toestablish that the appellants were not in a position to obtain theOccupancy Certificate from the Municipal Corporation until theunauthorized structures were removed – In the absence thereof, theappellants would not be in a position to substantiate their case thatthey were unable to obtain the Occupancy Certificate, and complywith the directions issued by the District Forum – State Commissionerred in rejecting the application u/Or XLI, r. 27 by merely statingthat the documents are “not necessary” – Said order is anunreasoned one – Thus, the order passed by the State Commissionas also the order passed by the National Commission is set aside –Matter remitted to the State Commission to take the additionaldocuments on record, and decide the appeal on merits.
A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015)17 SCC 713 : [2015] 14 SCR 190 – referred to.
Case Law Reference
[2015] 14 SCR 190 Referred to.Para 3.2
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4628of 2019.
From the Judgment and Order dated 16.03.2018 of the NationalConsumer Disputes Redressal Commission, New Delhi in RevisionPetition No. 175 of 2016.
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AP. N. Puri, Mrs. Reeta Dewan Puri, Abhishek Puri, J. S. Marahatta,Advs. for the Appellants.
Prasenjit Keswani, Raghvendra Pratap Singh, Ms. Devika Khanna,Mrs. V. D. Khanna, Advs. for the Respondent.
The Judgment of the Court was delivered byB
INDU MALHOTRA, J. Leave granted.
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1. The present Civil Appeal has been filed to challenge the Orderdated 16.03.2018 passed in Revision Petition No. 175 of 2016 by theNational Consumer Disputes Redressal Commission (hereinafter referredCto as “the National Commission”). The Revision Petition was filed tochallenge the Interim Order dated 10.12.2015 passed by the StateCommission 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 OrderXLI Rule 27, CPC for permission to file additional documents, whichDhave come into existence after the filing of the Appeal before the StateCommission.
2. The background facts in which the present Civil Appeal hasbeen filed are briefly stated as under:
2.1. The Appellants are the sons of Late Smt. Mrudula K. AjmeraEwho was the owner and in possession of a plot of land bearingCTS No. 284/38, Military Road, Marol Village, Andheri(East), Mumbai – 400059.
The Late Smt. Mrudula K. Ajmera constructed a buildingviz. Tejas Apartments comprising of Ground plus 7 UpperFFloors. The flats were sold to various purchasers onownership basis.
The flat owners formed the Respondent – HousingSociety viz. M/s Tejas Co-operative Housing Society.
G2.2.The Respondent – Housing Society filed ConsumerComplaint No. 570 of 2008 before the District ConsumerDisputes Redressal Forum, Mumbai Sub-District.It was alleged that the Appellants/Opposite Parties had failedto supply service amenities to the members of theRespondent – Housing Society, failed to obtain the H
Occupancy Certificate from the Municipal Corporation, andexecute the Conveyance Deed in favour of the society.
The District Forum partly allowed the ConsumerComplaint vide Order dated 27.02.2013. It was declaredthat the Appellants had failed to supply the service amenitiesto the Respondent – Housing Society, and obtain theOccupancy Certificate from the Municipal Corporation, andexecute the Conveyance Deed.
The District Forum directed the Appellants to obtainthe Occupancy Certificate for the building within 3 monthsfrom the date of judgment. If the Appellants failed to obtainthe Occupancy Certificate within the period specified, theywould be liable to pay Rs. 500/- per day to the society.
The Appellants were further directed to execute theConveyance Deed in favour of the Respondent – HousingSociety within 6 months from the date of judgment; refundthe amount of Rs. 1,80,600/- collected from the societymembers towards service amenities; refund the amount ofRs. 1,15,368/- incurred by the society members towardsformation of the society; and refund the amount ofRs. 1,98,198/- paid by the society members towards watertaxes.
2.3. Aggrieved by the aforesaid Order passed by the DistrictForum, the Appellants filed First Appeal No. 85 of 2013before the State Consumer Disputes Redressal Commission,Maharashtra.
The said Appeal is presently pending before the StateCommission.
2.4. On 15.01.2014, the Appellants/Developers filed anApplication under Order XLI Rule 27, CPC for leadingadditional evidence before the State Commission in thepending Appeal.
The Appellants requested for permission to produce twodocuments which had come into existence after the filing ofthe Appeal i.e. (i) Letter dated 08.08.2013 from theirArchitect to the Executive Engineer, Municipal Corporation A
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Aof Greater Mumbai (“MCGM”) enclosing the plans of allthe floors, and requested for issuance of the OccupancyCertificate; (ii) Reply by the MCGM dated 26.08.2013,wherein it was stated that as per the visit done, there wasunauthorized enclosure of elevation features by occupantswhich was violative of the last approved plans datedB02.07.2001. The Appellants were directed to remove theunauthorized structures along with compliance of requisiteconditions.
2.5. The State Commission vide Interim Order dated 10.12.2015held that these documents were not necessary, and rejectedCthe Application.
2.6. Aggrieved by the aforesaid Interim Order dated 10.12.2015,the Appellants herein filed Revision Petition No. 175 of 2016before the National Commission.
The National Commission in para 11 of its Order dated16.03.2018 held that it is an admitted fact that the additionaldocuments sought to be produced by the Appellants did notexist while the matter was before the District Forum. TheNational Commission merely held that the additionalinformation sought to be introduced does not satisfy the preconditions under Section 107(1)(d) r.w. Rule 27 of OrderXLI, CPC, and since the State Commission had held thatthe documents were not necessary, it did not call for anyinterference.
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2.7. Aggrieved by the Impugned Order dated 16.03.2018 passedFby the National Commission, the Appellants have filed thepresent Appeal.
3. We have heard learned Counsel for both parties, and perusedthe pleadings on record.
3.1. We have perused the Application filed by the Appellantsherein for bringing additional evidence on record, along withthe documents sought to be produced in the pending Appealbefore the State Commission. These documents haveadmittedly come into existence after the Appeal was filedbefore the State Commission. The Appellants therefore, could G
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JITEN K. AJMERA & ANR. v. M/S TEJAS CO-OPERATIVEHOUSING SOCIETY [INDU MALHOTRA, J.]
not have produced the said documents before the DistrictForum.
3.2. Under Order XLI Rule 27, CPC a party can produce additionalevidence at the appellate stage, if it establishes thatnotwithstanding the exercise of due diligence, such evidencewas not within its knowledge, or could not even after theexercise of due diligence, be produced by it at the time whenthe decree appealed against was passed.[1]
3.3. These documents are of relevance to establish that theAppellants are not in a position to obtain the OccupancyCertificate from the MCGM until the unauthorized structures,which are in violation of the approved plans, are removed. Inthe absence of these documents, the Appellants would notbe in a position to substantiate their case that they are unableto obtain the Occupancy Certificate, and comply with thedirections issued by the District Forum.
4. The State Commission was in error by rejecting the Applicationfiled by the Appellants under Order XLI Rule 27, CPC by merely statingthat the documents are “not necessary”. The said Order is an unreasonedone. The State Commission must have taken a holistic view of the matter.
5. The National Commission has by the Impugned Order dated16.03.2018 affirmed the Interim Order passed by the State Commission.
6. In light of the aforesaid discussion, the Interim Order dated10.12.2015 passed by the State Commission is hereby set aside, as alsothe Impugned Order dated 16.03.2018 passed by the NationalCommission.
The Civil Appeal is allowed. The matter is remitted to the StateCommission to take the additional documents on record, and decide theAppeal on merits in accordance with law. The State Commission is furtherdirected to decide the Appeal expeditiously since it is pending since 2013.
Ordered accordingly.
Nidhi Jain
Appeal allowed.
1 A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713.
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