Kamla Devi vs U.P. Avas Evam Vikas Parishad

THIS is an appeal by the complainants against the order dated 13.1.2005 passed by the District Forum, Dehra Dun whereby the complaint of the complainants was dismissed.

THE complaint was filed for recovery of Rs. 75,000 as compensation from U.P. Avas Evam Vikas Parishad on the ground that Sh. Vijay Pal Singh had purchased a house on 10.5.1985 from Avas Vikas Parishad. He got possession of the house on 23.9.1985 and in the possession letter the deficiency in the construction of the house has been noted. In spite of repeated requests, the house was not repaired. THE deficiencies were not removed. THEn he got it repaired himself. He wrote several letters but the amount was not paid. THErefore, complaint was filed before the learned Forum. It was dismissed by the learned Forum after hearing the parties. It was observed by the learned Forum that the complaint has been filed on 9.3.1998, whereas the possession was taken on 23.9.1985, therefore, the complaint is barred by time. THE learned Forum further held that the complainant has filed a complaint earlier also, which was dismissed in default, therefore, the present complaint was barred by time. Being aggrieved by the above order, the complainants have filed the present appeal. We have heard the learned Counsel for the parties and gone through the records. We need not go into further details of the case. Actually when there was some deficiency in the house at the time of giving possession to the complainant, it should have been removed by the Avas Vikas Parishad but when it did not do so, a complaint should have been filed in time. In those days, it could have been filed within 3 years. However, a complaint appears to have been filed in 1993, which was registered as Complaint No. 478 of 1993, Vijay Pal Singh Negi v. U.P. Avas Vikas Parishad. This was in respect of same cause of action. It was dismissed in default on 27.8.1993. It was not got restored. The complainant has also filed a writ petition in the Hon''ble High Court in 1988. When in the writ petition, the same reliefs were claimed. When in the said writ petition also compensation was called for, the complaint No. 478 of 1993 did not lie. The Complainant should have got his reliefs in the said writ but God knows who advised him to file a complaint in 1993. At any rate the writ petition was disposed of on 31.7.1997. The order of the writ petition is that the petitioner has called for the relief that the house is not of merchantable quality and not reasonably fit for use. A recovery certificate has been issued against the complainant. His repairs have not been carried out. It was conceded that there were some dues of the Avas Vikas Parishad but the complainant has deducted this amount out of the dues of the Avas Vikas Parishad, therefore, he should not be asked to pay anything to the Avas Vikas Parishad. The Hon''ble High Court held that it was further contended that instead the Board should pay or adjust Rs. 30,000 as the petitioner had to spend this amount in the repairs to newly constructed house. The Hon''ble High Court held that this Court is not going into the aspect that what the petitioner contends is correct but the petitioner should not have stopped his payment towards the house in instalments unless he did not require the accommodation. Insofar as the bad quality of the construction is concerned, the petitioner could have filed a suit against the Board or addressed a complaint before the Consumer Forum. In this writ petition it was never directed that the petitioner may file a complaint before the Forum and limitation if any shall be condoned. The complainant does not appear to be fair before the Hon''ble High Court as well. There he should have immediately told that he has already addressed a complaint before the learned Forum, which has been dismissed on 27.8.1993. He kept silent there. Thus, by this order neither the Hon''ble High Court has given liberty to the complainant to file a fresh complaint, nor the delay was directed to be condoned. The complainant did not inform the Hon''ble High Court regarding his earlier complaint and its dismissal and on the basis of the finding of the Hon''ble High Court dated 31.7.1997, he filed the present complaint. This order of the Hon''ble High Court is not a permission to the complainant to file a complaint, nor any liberty has been given. It was only observed that he could have filed a complaint, which the complainant has already done. Therefore, no period can be extended on the basis of the Hon''ble High Court''s order. It is true that earlier dismissal in default cannot operate as res judicata because there was not finding on merits but the principle of law is also correct that dismissal of earlier complaint does not bar from filing another complaint on the same cause of action but it does not automatically extend limitation unless it is allowed by any Competent Authority. The earlier complaint has been dismissed. The writ petition has been dismissed. No liberty whatsoever has been given to the complainant to institute a complaint in future. No limitation has been extended by the Hon''ble High Court. No delay has been condoned by the Hon''ble High Court and no permission has been recorded that the Forum will agitate the matter afresh if the complainant files a complaint after the dismissal of the writ petition. We have gone through the records and we find that the order passed by the learned Forum is perfectly justified. There is no force in this appeal and the appeal is liable to be dismissed. ORDER The appeal is hereby dismissed. Costs shall be easy. Appeal dismissed.