NIRMAL BANERJEE vs C.E.S.C. Ltd.

THIS is an appeal filed against the order dated 10.7.2003 passed by the District Forum, South 24-Parganas in the Forum Case No. 222 of 2003. By that order the Forum dismissed the complaint petition without admitting the same. The present appellant (Dr. Nirmal Banerjee) was the complainant before the Forum whereas the present respondent (C.E.S.C.) was the O.P. The relevant facts in brief are as under.

THE complainant had earlier filed a Case No. 50 of 2002 against the same O.P. before the Forum which was allowed by the Forum by its order dated 20.5.2002. While allowing the complaint case the Forum directed the O.P. to restore the electricity connection of the complainant within 10 days from the date of the order. However, the O.P. did not comply with the order within the stipulated period so that the complainant was forced to file an execution case (Execution Case No. 38 of 2002). During the pendency of the execution case the O.P. complied with the order of the Forum and connection was restored on 25.8.2002. Accordingly the Forum by its order dated 6.9.2002 disposed of the execution case, observing that the penal provision under Section 27 of the C.P. Act is not resorted to when the order of the Trial Forum has already been complied with. This observation was made by the Forum in the context of the decree holder''s submission that when the order of the Trial Forum was not complied with by the J dr. initially, penal provision be resorted to. It is understood that the O.P., C.E.S.C. filed an appeal with the State Commission against the order of the Trial Forum as referred to above, though that appeal was subsequently dismissed as not pressed. Be that as it may, the complainant filed a fresh complaint case before the Forum (Case No. 222 of 2003) claiming compensation from the C.E.S.C. for his sufferings and harassment for the period from 30.5.2002 to 24.8.2002 during which he had to undergo extreme sufferings for want of restoration of electric line. While considering this complaint petition for admission the Forum observed that the case was not maintainable as it did not relate to any pending dispute case. THE Forum also observed that the order which was allegedly not complied with for some period thereby causing harassment to the complainant had already been complied with by the O.P. and there was no longer any basis for award of compensation. Accordingly the Forum dismissed the complaint petition without admitting the same with the observation that the complainant had no real dispute which is legally entertainable. THE complainant has come in appeal before the Commission against this order of the Forum. In the memo of appeal the appellant has stressed the point that the case in which the impugned order was passed was for a new cause of action relating to a period subsequent to the period for which decision had been given by the Forum earlier in the Forum Case No. 50 of 2002. It has been pleaded by the appellant that the O.P./respondent committed deficiency in service and resorted to unfair trade practice by delaying the compliance of the order of the Trial Forum by about three months. The appellant has prayed for setting aside the impugned order and for directing the Forum to admit his complaint and to try the case as per the provisions of the C.P. Act.

During the hearing both the sides were present through their learned Advocates. The learned Advocate for the appellant argued by and large on the same line as pleaded in the memo of appeal. The learned Advocate for the respondent submitted that though an appeal had been preferred by them against the Trial Forum''s order, the said order was complied with on 25.8.2002 during the pendency of the appeal as also the execution case. In this background there was no deficiency in service on the part of the respondent according to the learned Advocate for the respondent.

WE have carefully perused all the documents as referred to above and we tend to agree with the views of the Forum. Admittedly the complaint case did not relate to any pending dispute. The order of the Trial Forum had already been complied with by the O.P. though with some delay and after such compliance the complainant could not have any real dispute afresh. For the harassment caused by the O.P. for the delay in complying with the Trial Forum''s order the complainant ought to have pressed for cost before the Executing Forum. If the Executing Forum did not accede to such a prayer of the appellant his remedy lay in moving this Commission against that order of the Executing Forum under the appropriate provision of the C.P. Act. But he having not preferred any appeal or revision allowed the order of the Executing Forum to remain in force. Thereafter he cannot be permitted under the law to bring a fresh litigation, as that would lead to multiplicity of litigations. Moreover it needs to be mentioned that the Jdr. i.e., C.E.S.C. could implement the order of the Trial Forum belatedly as the Executing Forum allowed it to do so by expressly or impliedly allowing adjournment in favour of the Jdr. in that behalf. In view of the reasons discussed above we are of the opinion that there is no illegality or infirmity in the impugned order and as such it does not call for any interference. Accordingly the appeal is dismissed on contest and the impugned order of the Forum is affirmed. There will be no order as to cost. Appeal dismissed.