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

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

against was passed.1  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. 6

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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