PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 5.9.2012 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 140/2012 – M/s. Amar Tractors Vs. Promila Sharma & Anr. by which, while dismissing appeal, order of District Forum allowing complaint was upheld. 2. Brief facts of the case are that complainant/Respondent No.1 purchased tractor from OP No. 1/Respondent No.2 on 14.5.2007 for a sum of Rs.1,56,000/-. Trolley was also purchased with tractor. Just after 22 days Tractor developed some sang and after repair again it developed problem many times and stopped functioning on 20.10.2007 and was taken for repairs. It was further alleged that OP No.2/Petitioner was manufacturer of tractors and there was warranty of 12 months, but it became impossible to run the tractor economically which indicated that it has some manufacturing defect. Complainant asked OP to refund the cost of tractor and trolley with interest. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP No. 1 resisted complaint. Notice issued to OP No. 2 not received back within 30 days; so, was proceeded exparte. Learned District Forum after hearing parties allowed complaint and directed OP No. 1 & 2 to refund sale consideration of tractor with interest and further awarded damages of Rs.50,000/- and cost of Rs.2,000/-. Both the OP No. 1 & 2 filed appeal before State Commission and State Commission vide impugned order dismissed both the appeals against which, this revision petition has been filed. 3. None appeared for Respondent No. 2 and he was proceeded ex-parte. 4. Heard learned Counsel for the parties and perused record. 5. Learned Counsel for the petitioner submitted that learned State Commission has committed error in rejecting application under Order 41 Rule 27 CPC by impugned order and has not considered those documents; hence, revision petition be allowed and matter may be remanded back to the State Commission. On the other hand, learned Counsel for the respondent submitted that as petitioner did not appear before District Forum, learned State Commission rightly rejected application; hence, revision petition be dismissed. 6. Parties also argued on merits of the case, but at present I am not considering merits of the case and I am dealing only rejection of application under Order 41 Rule 27 CPC. 7. Learned State Commission while rejecting application under Order 41 Rule 27 CPC observed as under: Opposite party No.2 has moved an application under Order 41 Rule 27 C.P.C., seeking leave of the Commission to adduce some additional evidence. Application is liable to be rejected on the face of it, because when the opposite party No.2 did not appear and filed no reply raising any particular plea, it cannot be permitted to raise and prove any plea by adducing evidence before us. The reason is that before proving any particular plea, foundation in the form of pleadings is required to be laid, which is lacking in the present case. So, the application is rejected. 8. When petitioner was proceeded ex-parte on the basis of deemed service, there was no occasion for the petitioner to file reply along with documents before District Forum. He has challenged ex-parte order before State Commission and has filed application for taking documents on record which documents are very material for disposal of appeal. Learned Counsel for the petitioner wanted to place on record letter issued by Directorate of Transport to all RTOs regarding registration of tractor for agriculture purposes only in Himachal Pradesh and in the case in hand, apparently tractor was used for other purposes also besides agricultural purposes. These documents were necessary for proper disposal of appeal and learned State Commission has without any cogent reason rejected application and has not considered documents. In such circumstances, impugned order is liable to set aside and matter is to be remanded back for disposal after taking into consideration documents filed along with application under Order 41 Rule 27 CPC. 9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 5.9.2012 passed by learned State Commission in Appeal No. 140/2012 – M/s. Amar Tractors Vs. Promila Sharma & Anr. is set aside and application under Order 41 Rule 27 CPC filed by the petitioner is allowed and documents are taken on record and matter is remanded back to learned State Commission to decide it afresh after giving an opportunity of being heard to both the parties and shall consider documents filed along with application under Order 41 Rule 27 CPC. 10. Parties are directed to appear before State Commission on 17.11.2014 | 
