ABDUL WAHID LATIF KAZI vs GULAB ENTERPRISES

RESPONDENTS are present through their Advocate in response to notice before admission issued by us on 17.2.2004, when application on behalf of the appellant was moved for its admission/hearing. We, therefore, proceed to dispose of this appeal at the stage of its admission itself on hearing the learned Advocates for the parties and on perusal of the material available in the appeal paper book.

AT the outset we wish to clarify that we are not adverting to the merits or demerits of the issues involved in the matter, since we are prima facie satisfied that this matter should go back to the District Forum for consideration afresh on merits. Few relevant facts: (Hereinafter appellant is referred to as "Gala purchaser" and respondent as "Builder)." The Gala purchaser has filed this appeal against the order dated 5.1.2002 passed by District Forum, Thane rejecting/declining to entertain complaint of the complainant and relegating the complainant to the Civil Court. Gala purchaser has filed his complaint referring and relying upon the Agreement dated 26.1.1997 entered into between him and the Builders and claimed possession of the premises in question and other related reliefs on the basis thereof.

It is noticed that Builder appeared and took up the contention that said Agreement relied upon by the Gala purchaser was forged one. This persuaded the District Forum to take the view that since the allegations of fraud were made it cannot prove the same and, therefore, relegated the complainant to the Civil Court by rejecting his complaint.

ON perusal of the complaint, we notice that the complainant has placed reliance on the above mentioned Agreement and claimed relief in pursuant thereof on the footing that agreement is valid and genuine. That being so, we fail to understand as to why the District Forum declined to entertain the complaint. It is settled position of the law, that the maintainability of the dispute is to be adjudged on the basis of averments made in the complaint and the same should not depend upon the stand opposite party may take. Of course, burden will be upon the party alleging fraud, but the position as stands and facts as have been set out in the complaint, we do not find any reason why District Forum cannot probe the dispute. This is more so, when the dispute of a nature would squarely fall and amenable to the jurisdiction of the District Forum under Section 2(1)(o) of Consumer Protection Act, 1986, wherein "Housing construction" has been included as a kind of service as being amenable to the jurisdiction of Consumer Fora.

THAT being so, we set aside the order impugned in this appeal and remit the matter to the District Forum for consideration afresh. ORDER 1. Appeal is allowed and its impugned order dated 5.1.2002 is set aside. 2. Matter is remitted to the District Forum, Thane for consideration afresh on merits in accordance with the provisions of the Law and the Rules and on giving proper opportunities to the parties thereunder. 3. Appellant''s Advocate shall furnish copy of the order herein to the District Forum, Thane immediately. 4. By consent the date of appearance before the District Forum, Thane by the parties is fixed on 3.8.2004, on which date the parties shall ensure their appearances before the District Forum without fail and seek the directions with regard to the fixation of date of hearing. 5. It is made clear and distinctly understood to the parties that no further notices for appearance will be required to be issued by the District Forum to the parties. 6. The District Forum shall proceed to dispose of the complaint totally uninfluenced by its earlier findings or any observations of ours in the judgment herein concerning the merits of the matter treating the same as our prima facie views and observations thereof. 7. District Forum to ensure expeditious disposal of the matter after remand. 8. As far as this appeal is concerned, no order as to costs. 9. Office shall furnish copies of the order to the parties.

Appeal allowed.