Jiten K. Ajmera vs M/S Tejas Co Operative Housing Society

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

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 Signature Not Verified Digitally signed by

dated 10.12.2015 passed by the State Commission MUKESH KUMAR Date: 2019.05.06 16:49:11 IST Reason:

Consumer Disputes Redressal Commission, Mumbai

1 (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

2 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

3 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

4 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.

5 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.

7 Ordered accordingly.

.....................................J. (UDAY UMESH LALIT)

.…...............………………J. (INDU MALHOTRA)

New Delhi, May 6, 2019.

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