Case Note & Summary
The appellants, Shangrilla Apartments Co-op. Housing Society Ltd. and its members, filed a suit (Special Civil Suit No.130/2000) before the Civil Judge, Senior Division, Panaji, seeking a declaration and injunction against the respondents, M/s. Rivin Builders and flat owners, alleging that the respondents constructed additional floors and used common amenities without the society's consent. The trial court dismissed the suit on 7th July 2009. The appellants appealed to the Bombay High Court at Goa. During the appeal, the appellants filed an application under Order 41 Rule 27 CPC to produce three documents, including correspondence with the Registrar of Co-operative Societies and confirmation of society members. The respondents opposed, arguing that evidence would need to be recorded to verify the documents. The High Court, after hearing arguments, dismissed the application, noting that the appellants failed to demonstrate that the documents were not within their knowledge or could not be produced with due diligence at the trial stage. The court also upheld the trial court's dismissal of the suit, finding that the appellants did not prove their title or any breach of contract by the respondents. The appeal was dismissed with no order as to costs.
Headnote
A) Civil Procedure - Additional Evidence in Appeal - Order 41 Rule 27 CPC - Application for production of additional documents during appeal - Court held that allowing such documents would require recording of evidence to verify their veracity, and since the appellants failed to show that the documents were not within their knowledge or could not be produced despite due diligence, the application was dismissed (Paras 2-3).
B) Property Law - Suit for Declaration and Injunction - Common Amenities - Burden of Proof - Appellants claimed that respondents constructed additional floors and used common amenities without consent - Court found that the appellants failed to prove their title or any breach of contract, and the suit was dismissed for lack of evidence (Paras 4-5).
Issue of Consideration
Whether the appellants are entitled to a decree for declaration and injunction against the respondents regarding the construction of additional floors and use of common amenities, and whether additional evidence should be allowed under Order 41 Rule 27 CPC.
Final Decision
The appeal is dismissed. The application for additional evidence under Order 41 Rule 27 CPC is also dismissed. No order as to costs.
Law Points
- Order 41 Rule 27 CPC
- Additional evidence in appeal
- Suit for declaration and injunction
- Burden of proof
- Breach of contract
Case Details
2015 LawText (BOM) (07) 160
First Appeal No. 206 of 2009 with Misc. Civil Application No. 182/2015
Mr. M. B. De Costa (Senior Advocate) with Shri J. A. Lobo and Ms. S. Chodankar for appellants; Mr. A. F. Diniz for respondent No.1; Mr. V. R. Tamba for respondents No.2 to 5
Shangrilla Apartments Co-op. Housing Society Ltd. and Others
M/s. Rivin Builders and Others
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Nature of Litigation
Civil appeal against dismissal of suit for declaration and injunction
Remedy Sought
Appellants sought declaration and injunction against respondents regarding construction of additional floors and use of common amenities
Filing Reason
Appellants alleged that respondents constructed additional floors and used common amenities without consent of the society
Previous Decisions
Trial court dismissed Special Civil Suit No.130/2000 on 7th July 2009
Issues
Whether the appellants are entitled to a decree for declaration and injunction?
Whether the application for additional evidence under Order 41 Rule 27 CPC should be allowed?
Submissions/Arguments
Appellants argued that the documents sought to be produced were necessary for just decision and were not available earlier.
Respondents contended that allowing additional documents would require recording of evidence to verify their veracity.
Ratio Decidendi
The court held that the appellants failed to prove their title or any breach of contract, and the application for additional evidence was not maintainable as the appellants did not show that the documents were not within their knowledge or could not be produced with due diligence.
Judgment Excerpts
The learned Counsel appearing for the respondents points out that in case this Court allows production of the said documents, evidence would have to be recorded to examine the veracity of such documents...
The above appeal, inter alia, challenges the Judgment and Decree passed by the learned Civil Judge, Senior Division, at Panaji, in Special Civil Suit No.130/2000 dated 7th July, 2009 whereby the suit filed by the appellants came to be dismissed.
Procedural History
The appellants filed Special Civil Suit No.130/2000 before the Civil Judge, Senior Division, Panaji, which was dismissed on 7th July 2009. The appellants then filed First Appeal No. 206 of 2009 before the Bombay High Court at Goa. During the appeal, they filed Misc. Civil Application No. 182/2015 under Order 41 Rule 27 CPC for additional evidence. The High Court heard the appeal and the application together and dismissed both on 8th July 2015.
Acts & Sections
- Code of Civil Procedure, 1908: Order 41 Rule 27
