1.      Heard counsel for the parties.

2.      The above appeal has been filed challenging the two orders of State Consumer Disputes Redressal Commission, Maharashtra passed in CC/19/109 i.e. first order dated 29.06.2021 by which the State Commission has declined to condone the delay in filing the written reply by the appellants.

3.      So far as the order dated 29.06.2021 is concerned, this order is fully inconsonance with Constitution Bench judgment of the Supreme Court in New India Insurance Company Limited Versus Hilli Multipurpose Cold Storage Private Limited (2020) 5 SCC 757.

4.      The appellants have also challenged other order of State Consumer Disputes Redressal Commission dated 20.08.2021, whereby the appellants’ application to file certain documents was rejected, on the grounds that was the defence of the appellants has been struck off, therefore, it is entitled to lead any evidence.

5.      Section 5 of the Indian Evidence Act, 1872 provides that the evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared as relevant and of no other.  The phrase “the every fact in issue” has been defined in the Evidence Act, 1872 that means and includes any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability, disability, asserted or denied in any suit or proceeding, necessarily follows.

6.      A bare reading of the aforesaid provision shows that the definition used to phrase asserted or denied. Therefore, the plaintiff is entitled to adduce any evidence to prove any fact asserted in the plaint and the defendant is entitled to adduce evidence to rebut it or to disprove it. Supreme Court in Prataprai N. Kothari Vs. John Braganza, (1999) 4 SCC 403 held that the evidence can be adduced in relation to every fact in issue.  The fact in issue is not limited to facts denied. 

7.      The counsel for the respondent, however, relied upon the judgment of Supreme Court in Modula India Vs. Kamakshya Singh Deo, (1988) 4 SCC 619 in which Supreme Court has held as follows: 

“23.  ……..Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed.”

24.  ……… subject to the exercise of an appropriate discretion by the court on the facts of a particular case, would generally be entitled:

(a) to cross-examine the plaintiff's witnesses; and

(b) to address argument on the basis of the plaintiff's case. We would like to make it clear that the defendant would not be entitled to lead any evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of the plaintiff's case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself virtually into a presentation of the defendant's case either directly or in the form of suggestions put to the plaintiff's witnesses.”

8.      A perusal of this judgment does not indicate notice of Section 5 of Evidence Act, 1872 has been taken it, therefore, the larger Bench judgement of Supreme Court of Prataprai N. Kothari Vs. John Braganza, (supra) is still reliable.  At this stage, it was not appropriate for the State Commission to reject the application for adducing document of the appellants have right to rebut the evidence of the complainant.

9.      In the result, the appeal is partly allowed.  The order dated 20.08.2021 is set aside. At the relevant stage, the State Commission will examine and decide as to whether the documents filed by the appellants are of the nature of documents in rebuttal of the evidence of the complainant.  If they are falling in the category of rebuttal, they may be considered and relied upon.