MAHARIA AUTOMOBILES -/O.P. vs Surja

THIS appeal is directed against the somewhat short ex-parte order of the District Forum, Hisar directing the appellants to refund the amount of Rs. 8,356/- with interest at @ 18% to the respondent. For the threshold question, whether the ex-parte proceedings were justified, it is not necessary to advert deeply to the merits.

IT suffices to mention that the complainant respondent had preferred the complaint on the allegation that he had purchased one Swaraj tractor from the appellants on the payment of Rs. 1,00,256/- way back on the 15th of November, 1988 against a regular receipt for the said amount. Nearly three years thereafter the present complaint dated the 31st of October, 1991 was preferred on the allegations that the dealers price for the said tractor by the manufacturers namely the Punjab Tractors Limited was Rs. 91,900/- only and the respondent has, therefore, over-charged to the tune of Rs. 8,356/- which was sought to be refunded with interest. Notice of the complaint aforesaid was issued to the respondents on their original address at Hisar, but the record does not disclose any service thereof or any report thereon. Since no appearance or reply was filed, another notice was issued for 27th of March, 1992 by post. The same was received back undelivered with the report that the addressee had left the Auto Market. The District Forum on the said somewhat tenuous ground forthwith proceeded against the appellant ex-parte and summarily granted the relief noticed at the out-set.

The present appeal was file on the 29th of May, 1992 and meanwhile an application dated the 16th of May, 1992 was also moved before the District Forum for setting aside the ex-parte proceedings. By an interim order dated the 7th of July, 1992 we directed that the record be sent back for deciding the said application expeditiously. In compliance therewith, the District Forum has passed the order dated the 5th of August, 1992, rejecting the application.

THE learned Counsel for the appellant Mrs. Shashi Ghuman has primarily focus herself on the point that the ex-parte proceedings against the appellant were wholly unjustified. It was pointed out that long before the preferring of the complaint (which as already noticed was filed after three years of the impugned transaction) the appellant had changed his place of business from 174, Auto Market, Hisar to Hansi, where it earlier had a branch office. Consequently, it was submitted that at no stage, the appellants were duly served or had the least knowledge of the proceedings. THE order under appeal was, therefore, passed entirely behind their back without affording them any opportunity whatsoever to defend the complaint which according to the appellant was wholly frivolous. It was pointed out that the retail price of the tractor was much higher then the price charged by the manufacturers from the dealer and over and above that the respondent had been supplied accessories to the tractor and a regular receipt reflecting the correct price had been issued. It is unnecessary to delve into the merits because we are inclined to take the view that in the present case the ex-parte proceedings against the appellant are patently not sustainable. As already noticed, both the notices were issued against the appellant on their original address at 174, Auto Market, Hisar. There is no indication whatsoever whether the first notice was at all served. The report on the second notice clearly was that the appellants had since changed their premises from the address given by the complainant It is the firm case of the appellants that the respondent was well aware of the change in the address and had deliberately given an old and wrong address nearly a three years after the transaction. It is patent that there was no contumaciousness or evasion on the part of the appellants to avoid service. Indeed it is not even the finding of the District Forum either in the original order or the one dismissing the application that the appellants were ever served.

SHORT of technicalities, the heart of the matter herein is whether the appellants had knowledge of the proceedings against them and had an opportunity to defend the same. It is a cardinal rule both of substantive and procedural law that no person can be condemned unheard. Herein, as already indicated, it is somewhat manifest that the appellants at no stage were aware of the proceedings. They cannot be planted with any constructive knowledge or be penalised for allegedly not intimating the Post Office to redirect their letters from Hisar to Hansi as seems to have been suggested in the order of the District Forum, whilst dismissing their application. Indeed it appears to us that the complainant was himself somewhat remiss in not giving the actual current address of the respondent when he preferred his somewhat belated complaint. For the fore-going reasons, we set-aside the order under appeal and remand the case for a fresh trial in accordance with law. We would however, leave the parties to bear their own costs. Appeal allowed.