Babu Lal Garg vs RAJASTHAN HOUSING BOARD

THE short point involved in this appeal is whether the District Forum, Jaipur was legally correct and justified in dismissing the complaint of the complainant-appellant by its order dated 28.5.1991 passed in Complaint Case No. 530/89. THE complainant submitted a complaint against the opposite party-respondent on 19.10.89 relating to the refund of certain amounts which he has deposited in connection with the allotment of the house by the opposite party. It was alleged that the complainant was allotted house and allotment-cum-possession letter No. 4417 dated 23.2.1977 was issued after completing the necessary formalities. He got the actual possession on 19.4.1977 and since then he has been residing in it. THE complainant submitted allotment letter and some other documents with the complaint.

THE opposite party did not submit any version of the case despite opportunity being afforded to it. THE District Forum heard the arguments of both the parties and passed the impugned order. It dismissed the complaint on the ground that the complaint required detailed investigation and also involves complicated question of law and facts which can conveniently be decided by a Civil Court. It opined that for the aforesaid grounds the reliefs cannot be granted. It dismissed the complaint on 28.5.1991. THE complainant has come up in appeal. On behalf of the opposite party-respondent reply to the appeal alongwith the photo stat copies of two documents was submitted. We heard Shri S.K. Tailor, Advocate for the appellant and Mr. M.L. Vyas, Advocate for the respondent and considered the record and the order appealed against in the light of the submissions made by the learned Counsel for the parties. Shri Tailor, learned Counsel for the appellant urged that the District Forum erred in dismissing the complaint on the ground that it involves a detailed enquiry and complicated and complex questions of fact and law are involved. Shri M.L. Vyas, learned Counsel for the respondent pressed for our consideration that in view of the decision in M/s. Special Machines v. Punjab National Bank [I (1991) CPJ 78 (NC)] the order of dismissal of the complaint is correct. He also urged that the averments that have been made in the complaint clearly show that the complaint as filed is barred by limitation under the Limitation Act, 1963 for it is well settled by the highest Redressal Forum that the complaints should be filed under the Consumer Protection Act, 1986 within the period prescribed under the Limitation Act. The District Forum had neither any occasion to examine the question of limitation as no version of the case was filed on behalf of the opposite party raising this question nor an argument was advanced before the District Forum in this connection, for it does not find mentioned in the order appealed against. As the record of the District Forum stands, it contains the complaint and 5 documents submitted by the complainant. Besides that there are no other documents on record. M/s. Special Machines'' case (supra) has been explained by the National Commission in S.K. Abdul Sukur v. State of Orissa & Others (First Appeal No. 96/ 90 on 5.4.1991) [II (1991) CPJ 202 (NC)] wherein the following weighty observations were made :- "It is true that in M/s. Special Machines v. Punjab National Bank and Ors. O.P. No. 32 of 1989, I (1991) CPJ 78 (NC) this Commission did decline to adjudicate upon the disputes brought before it and referred the complaint to the remedy by way of suit. But that was an exceptional case where transactions of borrowings from banks extending over a long period of many years in different accounts were sought to be re-opened on allegations of fraud, misappropriation, manipulation of accounts, violation of banking norms etc. This Commission found after its preliminary examination of the case that the issues arising therein could not be satisfactorily adjudicated upon without elaborate scrutiny and rendition of accounts in relation to transactions of borrowing which the complainant had with the respondent Bank under different heads spread over a long period of many years. The observations contained in the order passed by this Commission in that case have to be understood against the background of the special facts relating thereto which were of an exceptional nature. The said decision is not to be understood as laying down any general preposition that in all cases where the examination and cross-examination of witnesses is involved the proper forum for adjudication of the dispute is only the Civil Court. Another important point that weighed with this Commission in the M/s. Special Machines case was that the subject matter of the complaint in that case was already sub-judice in suits pending before the Civil Court and there was a clear overlapping and inter wining of the questions arising for determination in the suits and those sought to be adjudicated in the complaint. It was under these special circumstances that the complaint therein was referred by this Commission to pursue his remedy by way of suit."

It was held that a Redressal Forum should not refuse to exercise the jurisdiction under the Act on the ground that examination and cross-examination of the witnesses would be necessary for that would amount to denial of the benefit of the Act. As the record stands without investigation the District Forum was not right and justified in dismissing the complaint on the ground that complicated and complex questions of law are involved in the complaint. For this reason we are unable to sustain the order appealed against. The complaint will have to be sent back to the District Forum for its decision on merits in accordance with law keeping in view the observations made in S.K. Abdul Sukur''s case (supra). We consider it proper to direct that if the question of limitation is raised by the opposite party-respondent before the District Forum it shall determine it. The complainant at various places in the complaint has used the word "ABHIYUKT". Having this being noticed by us learned Counsel for the appellant was asked as what he has to say in this respect. In this connection he has submitted an application signed by the complainant-appellant expressing his regrets and also stated that he should be excused for it. In view of this application, this matter is dropped.

The result is that we are constrained to allow the appeal and set aside the order dated 28.5.1991 passed by the District Forum, Jaipur in Complaint Case No. 530/89 and remand the case to it with a direction to take on its file and decide it in accordance with law after giving an opportunity of hearing to all concerned keeping in view the observations made hereinabove. In the circumstances of the case we leave the parties to bear the costs. Appeal allowed.