A party can produce additional evidence at a appellate stage
The present Civil Appeal has been filed to challenge the Order dated 16.3.2018 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 (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, C.P.C. for permission to file additional documents, which have come into existence after the filing of the Appeal before the State Commission.
Hon’ble U.U. Lalit and Indu Malhotra, JJ., have held that we have perused the Application filed by the appellants herein for bringing additional evidence on record, alongwith 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.
Under Order XLI, Rule 27, C.P.C. 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.
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 approve 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.
The State Commission was in error by rejecting the Application filed by the appellants under Order XLI, Rule 27, C.P.C. 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.
The National Commission has by the Impugned Order dated 16.3.2018 affirmed the Interim Order passed by the State Commission.
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 16.3.2018 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 decided to direct the Appeal expeditiously since it is pending since 2013.
Jiten K Ajmera v. Tejas Co-operative Housing Society, 2019 (198) AIC 1 SC
Revision petition not maintainable before National Consumer Commission
The present Civil Appeal arises out of execution proceedings initiated by the respondent – complainant from an Order passed by the State Commission in a consumer dispute. The issue which has been risen for consideration is whether a Revision Petition under section 21(b) of the Consumer Protection Act, 1986 (herein after referred to as “the 1986 Act”) is maintainable before the National Commission Dispute Redressal Commission (herein after referred to as “National Commission”) against an Order passed by the State Commission in an execution proceeding.
The State Commission vide Order dated 1.3.2016 allowed the Appeal filed by the respondent –Complainant, and set aside the Order dated 16.8.2014 passed by the District Forum in E.P. No. 2 of 2014. It was directed that the amount of Rs 2,67,750 already paid by the Board, would be appropriated first towards the Interest component and then towards the principal amount. The State Commission remitted the matter to the District Forum for fresh computation in compliance with the Order.
Aggrieved by the Order of the State Commission, the appellant –Board preferred a Revision Petition under section 21(b) of the 1986 Act before the National Commission being R.P. No. 1362 of 2016.
The issue which arises for our consideration in the present Appeal is whether a Revision Petition is maintainable before the National Commission under sec 21(b) of the 1986 Act against an Order passed by the State Commission in an appeal arising out of execution proceedings.
The right to file a Revision Petition, like an appeal, is a right conferred by statute. In the absence of a statutory conferment, there is no inherent right to file a revision. Section 21 sets out the jurisdiction of the National Commission.
The exercise of revisional jurisdiction under section 21(b) by the National Commission is limited to a consumer dispute which has been filed before the State Commission. The jurisdiction under section 21(b) of the 1986 Act can be exercised by the National Commission only in case of a “consumer dispute” filed before the State Commission. The National Commission in exercise of its supervisory jurisdiction under section 21(b) is concerned about the correctness or otherwise of the orders passed by the State Commission in a “consumer dispute”.
We affirm the view taken by the Full Bench of the Andhra Pradesh High Court and Patna High Court. Execution proceedings even though they are proceedings in a suit, cannot be considered to be a continuation of the original suit. Execution proceedings are separate and independent proceedings for execution of the decree. The merits of the claim or dispute, cannot be considered during execution proceedings. They are independent proceedings initiated by the decree holder to enforce the decree passed in the substantive dispute.
There is no remedy provided under section 21 to file a Revision Petition before the National Commission against an Order passed by the State Commission in execution proceedings.
In the present case, the National Commission committed a Jurisdictional error by entertaining the Revision Petition under section 21(b) filed by the appellant – Board against an appeal filed before the State Commission, in Execution proceedings.
The National Commission erroneously allowed the Revision Petition under section 21(b) which was not maintainable.
Furthermore, the National Commission modified the decree passed by the Court vide Order dated 19.11.2012 wherein this Court had directed the Board to pay interest @ 18% p.a. on the principal amount of Rs 2,67,750/- (which included an amount of Rs 3,937 which had been initially deducted by the Board). The National Commission has awarded Interest on the amount of Rs 3,937/- twice, by first including it in the principal amount of Rs 2,67,750/-; and thereafter awarding Interest @ 18% on the same amount of Rs 3,937/-, which would amount to a double payment.
Karnataka Housing Board v. K A Nagmani, 2019 (198) 28 SC