Holding

The State Commission erred in rejecting the application for additional evidence; under Order XLI Rule 27, such evidence may be admitted if it was not within the party’s knowledge despite due diligence, and the order is set aside.

Summary

The appellants, sons of the deceased owner of a housing project, were directed by the District Consumer Forum to obtain an occupancy certificate and execute a conveyance deed for the co‑operative housing society. They appealed to the State Consumer Commission, and during the pendency of that appeal filed an application under Order XLI Rule 27 of the CPC to produce two documents that were created after the appeal was filed, showing that unauthorized structures prevented the issuance of the occupancy certificate. The State Commission rejected the application, deeming the documents unnecessary, and the National Commission affirmed that decision. The Supreme Court examined whether the appellate court could admit such additional evidence under Order XLI Rule 27 and found that the State Commission erred in rejecting the application without reasoning. Consequently, the Court set aside both the State and National Commission orders and remitted the matter to the State Commission to admit the documents and decide the appeal on its merits.

Issues considered

Whether additional evidence that came into existence after filing an appeal can be admitted under Order XLI Rule 27 of the CPC.
Whether the State Consumer Commission erred in rejecting the application for such evidence on the ground that the documents were ‘not necessary’.
Whether the National Consumer Disputes Redressal Commission was correct in upholding the State Commission’s order.

Legislation cited

Code of Civil Procedure, 1908s. Order XLI Rule 27, s. Section 107(1)(d)

Subjects

Consumer LawAdditional EvidenceAppellate ProcedureOrder XLI Rule 27Occupancy CertificateHousing SocietyCivil AppealProcedural Law

Judgment

[2019] 7 S.C.R. 243 243

JITEN K. AJMERA & ANR. A
v.
M/S TEJAS CO-OPERATIVE HOUSING SOCIETY
(Civil Appeal No. 4628 of 2019)
MAY 6, 2019 B
[UDAY UMESH LALIT AND INDU MALHOTRA, JJ.]
Code of Civil Procedure, 1908: Or XLI, r. 27 – Production of
additional evidence at the appellate stage – Application by
appellants for bringing additional evidence on record, along with
C
the 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 appeal
was filed before the State Commission – They are of relevance to
establish that the appellants were not in a position to obtain the
Occupancy Certificate from the Municipal Corporation until the D
unauthorized structures were removed – In the absence thereof, the
appellants would not be in a position to substantiate their case that
they were unable to obtain the Occupancy Certificate, and comply
with the directions issued by the District Forum – State Commission
erred in rejecting the application u/Or XLI, r. 27 by merely stating
E
that the documents are “not necessary” – Said order is an
unreasoned one – Thus, the order passed by the State Commission
as also the order passed by the National Commission is set aside –
Matter remitted to the State Commission to take the additional
documents on record, and decide the appeal on merits.
F
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. 4628 G
of 2019.
From the Judgment and Order dated 16.03.2018 of the National
Consumer Disputes Redressal Commission, New Delhi in Revision
Petition No. 175 of 2016.
H
243
244 SUPREME COURT REPORTS [2019] 7 S.C.R.

A P. 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 by
B
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
C 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
(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
D 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
E
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
F
Floors. The flats were sold to various purchasers on
ownership basis.
The flat owners formed the Respondent – Housing
Society viz. M/s Tejas Co-operative Housing Society.
G 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 obtain the
H
JITEN K. AJMERA & ANR. v. M/S TEJAS CO-OPERATIVE 245
HOUSING SOCIETY [INDU MALHOTRA, J.]

Occupancy Certificate from the Municipal Corporation, and A
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 B
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 C
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 D
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 the society; and refund the amount of
Rs. 1,98,198/- paid by the society members towards water
taxes. E

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.
F
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
G
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
H
246 SUPREME COURT REPORTS [2019] 7 S.C.R.

A 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
B
02.07.2001. The Appellants were 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
C 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.
D 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 pre
E conditions 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
F 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.
3.1. We have perused the Application filed by the Appellants
G
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
H
JITEN K. AJMERA & ANR. v. M/S TEJAS CO-OPERATIVE 247
HOUSING SOCIETY [INDU MALHOTRA, J.]

not have produced the said documents before the District A
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 B
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, C
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 substantiate their case that they are unable
to obtain the Occupancy Certificate, and comply with the
directions issued by the District Forum.
D
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 E
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. F
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.
Ordered accordingly. G

Nidhi Jain Appeal allowed.

1
A. Andisamy Chettiar v. A. Subburaj Chettiar, (2015) 17 SCC 713. H