BHAICHANDBHAI MADHABHAI vs Gujarat Housing Board

BHAICHANDBHAI Madhabhai Datania, by this appeal has brought under challenge the impugned judgment and order dated 15.7.1996 rendered in Complaint No. 578/1992 by the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad, wherein the complaint filed by him against Gujarat Housing Board, Ahmedabad and one another came to be dismissed.

THAT as regards the relevant facts of the case of the complainant and the opponent, for the sake of brevity and convenience, instead of re- narrating everything in extenso here, we would like to simply refer and rely upon the same as reproduced in paras 1 and 2 of the copy of the impugned judgment treating the same as the part of the judgment. The City Forum, after hearing the parties, dismissed the complaint on the ground that the copy of the terms and conditions produced by the opponents clearly revealed that when the allottee claimed refund of the amount deposited, the 25% amount will be deducted from the total amount of deposit.

Heard the learned Advocates appearing for the respective sides.

THERE appears to be some serious dispute raised by the appellant herein regarding the alleged terms and conditions produced by the opponent Gujarat Housing Board as to whether they are applicable to the facts of the present case in the matter of refund of Rs. 2,500/- deducted by the opponent. The learned Advocate Ms. Krishna Raval appearing for the respondent Gujarat Housing Board, while supporting the impugned judgment and order has tried to correlate and connect the said document to the ultimate conclusion drawn by the City Forum without there being anything on the record to connect it except the ipse dixit by way of oral submission made by her. This is simply neither here nor there. In our opinion, it is indeed an elementary principle of the rule of evidence that whenever a party bases its ultimate case upon particular terms/ conditions of the document, then in that case, it is required to be proved, more particularly when it is specifically disputed by the other side as having connection whatsoever with the facts of its case. If this is not done, oral submission howsoever vociferous, straining and demanding it is of the learned Advocates appearing for the parties the same cannot be permitted to bridge the gap or fill up the lacuna left over in absence of the necessary evidence to take the place of proof. The reason is when the dispute is regarding the interpretation of particular terms and conditions of particular document, the Judicial Authority is always required to insist upon examining the responsible officer conversant with the contents of the document so as to in the first instance enable the complainant to challenge the same to prove its case to the contrary as pleaded by him and in the second instance to ultimately satisfy its judicial conscience as to what extent it would be justified in either accepting and acting upon or rejecting the claims of parties based upon the said document. No doubt, the Parliament has quite rightly envisaged a summary procedure while trying and deciding the cases under the Consumer Protection Act, 1986 to deliver speedy justice, but then, this summary procedure does not mean an unholy haste to give go-bye to the legal requirements to prove the contents of the document when it is so challenged by the other side and everything ultimately turns upon it. Summary proceeding does not dispense with either the proving of a particular document when it is so disputed or the genuine satisfaction of the Authority regarding the proof of the same while deciding the cases. To ignore this basic tenet of evidence, law and justice would be indirectly permitting a shot or leap in the dark which leads none anywhere except wandering away in realm of injustice. Further still, the proof of the documents in such types of cases is absolutely necessary because the refunding of amount of deposit governs hundreds of such cases which cannot be decided on mere rival assertions justifying their respective stands made by the either side. Not only that but the Appellate Authority when the matter comes before it in appeal is also entitled to know as to ultimately on the basis of what convincing and cogent evidence the District Forum has held particular evidence proved when it was so specifically challenged before it. Need to frame Issues: Under the aforesaid circumstances, then the question would be what indeed could be the reasonable way out? The obvious answer undoubtedly is the framing of the issues and an opportunity to both sides to lead their respective evidence and prove and/or counter prove the rival contentions. In this regard we are indeed quite conscious of the fact that the underlying object of the C.P. Act is avoidance of the technical procedure which is many a times quite tardy and that is the reason why "summary procedure" dispensing with as far as possible technical procedure is prescribed in order to achieve the goal of speedy justice realised in the true spirit. Accordingly, framing of the issues in a given case may prove real road-block to the speedy justice, but then it would always be the better part of the judicial discretion to have the real justice if in the name of ''speedy justice'' the justice may ultimately stand frustrated and denied. In fact, after the complaint is filed and the same is replied to by the opponents by filing the written statement, it is the ordinary duty of every Consumer Disputes Redressal FORA and the learned Advocates appearing for the respective parties to find out and accordingly be atleast alive to what are the basic issues between the parties which require to be tried by leading evidence in absence of which there may not be just decision. If this exercise is not undertaken in the right earnest, the parties appearing before the C.D.R. FORA are likely to wander away in wilderness getting lost from the path of justice. Raising issues in appropriate cases and thereby point of determination is in fact making and enlightening the judicial path, both for the respective parties and the Court also which in turn helps all concerned in treading the right direction and thereby reaching the just goal viz. justice. In the instant case, unfortunately, for the want of raising the specific issue and accordingly without there being any definite evidence brought on the record connecting the alleged terms and conditions with the refund of 25% of deposit amount. City Forum appears to have mechanically accepted the assertion made by the respondent Gujarat Housing Board, deducting the amount of Rs. 2,500/-. Under the circumstances, at this appellate stage we have been left in total lurch in deciding the case either way constraining us to remand the case to the City Forum to raise the issue and call for necessary evidence to be tested and proved by the either side.

IN the aforesaid view of the matter, we have indeed no alternative left with us but to remand the case to the City Forum. Accordingly, the City Forum is hereby directed to issue notice to the respondent herein calling upon it to examine responsible officer conversant with the relevant documents in question to give evidence on oath before it so as to enable the appellant herein to cross examine and prove his case if he is able to do so. Further, having regard to the fact that this complaint is of the year 1992 and more than 5 years have already passed, the City Forum shall decide this matter on or before 31.12.1997. The learned Advocate Ms. Krishna Raval shall accordingly inquire with the department name of the concerned responsible officer conversant with the terms and conditions of the document in question relied upon by G.H. Board for the purpose of deducting 25% amount and give his name in writing to the City Forum on or before 30.9.1997. On the basis of this. City Forum shall issue short notice of 15 days to both sides and fix the date for settling issue. On the next date so fixed the respondent G.H. Board shall keep present its officer so named before the City Forum for giving evidence regarding which prior notice shall be issued to the appellant herein. IN case the witness as directed by this Commission is not coming before the City Forum for examination, the City Forum shall not feel itself powerless to issue, in the first instance, notice, in the second instance, bailable warrant and in the last instance, even non-bailable warrant for examination of the witness and/or draw adverse inference against the opponent G.H. Board accepting the contention of the appellant herein. In the result, this appeal is partly allowed. The matter is remanded to the City Forum to be heard and decided on merits on or before 31.12.1997 as directed above. Office is directed to forward a copy of this judgment and order alongwith the records and proceedings of the case to the City Forum immediately. Appeal partly allowed. ________________