Chandigarh

StateCommission

MA/720/2024

HARJIT CONSTRUCTION COMPANY - Complainant(s)

Versus

RAKESH GULATI AND ANOTHER - Opp.Party(s)

29 Oct 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

 

A/296/2024 along with

MA/719/2024 (stay) & MA/720/2024 (Additional Evidence)

 

Harjit Construction

 

…. Appellant

 

Vs.

 

Rakesh Gulati & Another

.… Respondents

 

 

BEFORE:   MRS.PADMA PANDEY PRESIDING MEMBER

                PREETINDER SINGH          MEMBER

 

 

Argued by	:	Sh. N.P. Sharma, Advocate for the Appellant (on VC)
		Sh. Savinder Singh Gill, Advocate for respondents no.1 and 2 alongwith Sh. Rakesh Gulati,  respondent no.1 in person.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

1.         By means of present order, we shall be disposing of MA/720/2024 filed by the appellant, inter alia, seeking permission to adduce additional evidence i.e. the documents Annexure A-2 to A-10 at the appellate stage, in FA/296/2024.

2.         The only issue which falls for consideration is as to whether this Commission should allow the applicant/ opposite party to place on record the said documents, as additional evidence in FA/296/2024 or not? The merits of this case, therefore, need not be discussed.
3.         Heard the Learned Counsel for the parties alongwith respondent no.1 in person and carefully gone through the record with utmost care and circumspection. 
4.         We have given our thoughtful consideration to the contentions raised and material on record.
5.         Learned Counsel for the Applicant/Appellant submitted that because a fraud has been committed by the Respondents before the Ld. District Commission, by concealing material facts, therefore, the documents referred to above could not be placed on record before the Ld. District Commission, as the Applicant/Appellant was wrongly proceeded against ex-parte. The Applicant/ Appellant further submitted that these documents are very much essential to be placed on record in FA/296/2024, in the interest of justice, fair play and equity.
6.         Per contra, learned Counsel appearing on behalf of the Respondents submitted that the documents sought to be placed on record, cannot be taken on record as additional evidence because the Applicant/Appellant is not allowed to lead any evidence at the appellate  stage, as it was already proceeded ex-parte by the District Commission, as the postal authority had reported that the Applicant/Appellant/Opposite Party on 15.01.2024 has refused to accept the summons sent by the Ld. District Commission and, therefore, now the Applicant/Appellant cannot be allowed to fill in the lacunae in presenting its case at the proper stage.
7.         We are of the considered opinion, that the instant misc. application is liable to be dismissed for the reasons to be recorded hereinafter.
8.         It is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps. It is also a settled law that the appellate court can only admit evidence if it is proved that the lower court unjustifiably refused to admit relevant evidence presented during the course of proceeding there-under and that a party can introduce new evidence if they can prove it was not within their knowledge or could not be produced at trial despite exercising due diligence.
9.         The only sole ground taken by the Applicant/Appellant in this application is that he could not produce these documents before the District Commission because of the fact that he was proceeded against exparte vide order dated 22.02.2024 and the said exparte report was based on report of the postal authority to the effect that the Applicant/Appellant on 15.01.2024 has refused to accept the summons sent by the Ld. District Commission, but said report is a procured one. It is important to mention here that the notice/summon of the main consumer complaint had been sent to the Applicant/ Appellant/ Opposite Party by the Office of the Ld. District Commission and not by the respondents/ complainants. In our considered view since the summons/notice were sent by the Ld. District Commission through valid mode, therefore, the valid report of refusal dated 15.01.2024 issued by the postal authorities cannot be questioned. To establish his case, the Applicant/ Appellant was required of to place on record any cogent and convincing evidence/ affidavit of any postal authorities/ officials saying that the said refusal report dated 15.01.2024 has not been issued by them but on the other hand it is a procured one, which the Applicant/ Appellant has miserably failed to do so.
10.         Secondly, the Applicant/Appellant has failed to bring to the notice of this Commission any law laid down by the Appellate Court or the Hon’ble Supreme Court which says that even if the party is proceeded against exparte by the lower court/commission, especially when the said ex-parte order has been passed because of refusal of acceptance of summons sent by the Ld. District Commission; still he is at liberty to directly or indirectly seek to establish or prove defence, or documents which do not form part of evidence and have not been admitted or proved or exhibited to file in the main case filed before the lower court. 
11.          In the case of State of U.P. V. Manbodhan Lal, AIR 1957 SC 9012 the Apex Court has laid down that it is well settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at the proper stage and to fill in gaps.
12.         Again, in The Municipal Corporation Of Greater Bombay V. Lala Pancham And Others  AIR 1965 SC 1008 the Apex Court held that the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. This provision does not entitle the appellate Court to let him fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing the lacunae in the evidence that the appellate Court is empowered to admit additional evidence and not for removing the lacunae in the case of the parties.
13.         The Apex Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193 has observed that Order 41 Rule 27 of CPC gives discretion to the appellate Court but the discretion given to the appellate Court under this provision to receive and admit additional evidence is not an arbitrary one but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on record will have to be ignored and the case has to be decided as if such evidence is not existing.
14.         Considering the aforesaid facts & circumstances of this matter, we are of the considered opinion that MA/720/2024 lacks merit and is liable to be dismissed.
15.         Consequently, MA/720/2024 is dismissed. No order as to costs.
16.         Certified copies of this order, be sent to the parties, free of charge.

Pronounced

29^th October,2024                                                                   

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

“Dutt”