Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4628 OF 2019
(Arising out of SLP (Civil) No. 26755 of 2018)
Jiten K. Ajmera & Anr. …Appellants
versus
M/s Tejas Cooperative Housing Society …Respondent
J U D G M E N T
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
Signature Not Verified
Digitally signed by
MUKESH KUMAR
Date: 2019.05.06
16:49:11 IST
Reason:
dated 10.12.2015 passed by the State Commission
Consumer Disputes Redressal Commission, Mumbai
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(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 Cooperative 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
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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
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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
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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
necessary, and rejected the Application.
2.6. Aggrieved by the aforesaid Interim Order dated
10.12.2015, the Appellants herein filed Revision Petition
No. 175 of 2016 before the National Commission.
The National Commission in para 11 of its Order
dated 16.03.2018 held that it is an admitted fact that
the additional documents sought to be produced by the
Appellants did not exist while the matter was before the
District Forum. The National Commission merely held
that the additional information sought to be introduced
does not satisfy the preconditions under Section 107(1)
(d) r.w. Rule 27 of Order XLI, CPC, and since the State
Commission had held that the documents were not
necessary, it did not call for any interference.
2.7. Aggrieved by the Impugned Order dated 16.03.2018
passed by the National Commission, the Appellants
have filed the present Appeal.
3. We have heard learned Counsel for both parties, and perused
the pleadings on record.
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3.1. We have perused the Application filed by the Appellants
herein for bringing additional evidence on record, along
with the documents sought to be produced in the
pending Appeal before the State Commission. These
documents have admittedly come into existence after
the Appeal was filed before the State Commission. The
Appellants therefore, could not have produced the said
documents before the District Forum.
3.2. Under Order XLI Rule 27, CPC a party can produce
additional evidence at the appellate stage, if it
establishes that notwithstanding the exercise of due
diligence, such evidence was not within its knowledge,
or could not even after the exercise of due diligence, be
produced by it at the time when the decree appealed
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against was passed.
3.3. These documents are of relevance to establish that the
Appellants are not in a position to obtain the
Occupancy Certificate from the MCGM until the
unauthorized structures, which are in violation of the
approved plans, are removed. In the absence of these
documents, the Appellants would not be in a position to
1 A. Andisamy Chettiar v. A. Subburaj Chettiar , (2015) 17 SCC 713.
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substantiate their case that they are unable to obtain
the Occupancy Certificate, and comply with the
directions issued by the District Forum.
4. The State Commission was in error by rejecting the
Application filed by the Appellants under Order XLI Rule 27,
CPC by merely stating that the documents are “not
necessary”. The said Order is an unreasoned one. The State
Commission must have taken a holistic view of the matter.
5. The National Commission has by the Impugned Order dated
16.03.2018 affirmed the Interim Order passed by the State
Commission.
6. In light of the aforesaid discussion, the Interim Order dated
10.12.2015 passed by the State Commission is hereby set
aside, as also the Impugned Order dated 16.03.2018 passed
by the National Commission.
The Civil Appeal is allowed. The matter is remitted to the
State Commission to take the additional documents on
record, and decide the Appeal on merits in accordance with
law. The State Commission is further directed to decide the
Appeal expeditiously since it is pending since 2013.
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Ordered accordingly.
.....................................J.
(UDAY UMESH LALIT)
.…...............………………J.
(INDU MALHOTRA)
New Delhi,
May 6, 2019.
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