PATEL GANPATLAL ISHWARLAL vs GAJJAR BHARATKUMAR AMTHALAL

THIS appeal arises from order dated 4.11.2003 rendered by the learned Consumer Disputes Redressal Forum, Banaskantha in Darkhast No. 45 of 2003 giving one more opportunity to the opponents to abide by the order passed by the learned Forum in Consumer Case No. 78 of 2002 on 31.3.2003.

IN order to appreciate the submissions made by the rival parties, it would be necessary to note brief facts with regard to the original proceeding as well as the execution proceeding. It was the complainant''s case in Consumer Case No. 78 of 2002 that the opponents, builders, carried on business/occupation of constructing houses and allotting and selling them to the consumers. The complainant proposed to purchase one such house constructed/to be constructed on Plot No. 22 for consideration of Rs. 3,58,501/- and made payments as per the particulars set out in the complaint. The opponents did not clear the title of the property as promised. They did not hand over possession of the property as promised and they sold away the property in question to some third party, informing the complainant that there were disputes between the partners and they were in need of finance. Under such circumstances, the complainant filed complaint for issuing direction to the opponents to accept balance consideration of Rs. 3,08,500/- and hand over the possession of the property in question along with the title clearance thereof by executing sale deed and on failure to do so, to direct them to return the amount of Rs. 50,000/- paid by the complainant to the opponents with interest. The learned Forum directed the opponents to allot and hand over possession of the property to the complainant by accepting balance amount of consideration of Rs. 3,08,501/- within 45 days of the order and execute the sale deed by obtaining necessary title clearance and permission and upon opponents'' failure to do so, to return Rs. 50,000/- with interest @ 9% p.a. from 16.8.2001 and cost quantified at Rs. 2,000/-. The complainant filed execution petition being Darkhast No. 45 of 2003. It is not in dispute that pursuant to the impugned order in Darkhast, the opponents have deposited certain amount with the learned Forum. However, they resisted the Darkhast on the ground that the learned Forum lacked inherent jurisdiction in deciding the complaint and, therefore, the orders sought to be executed was non est and nullity in the eye of law. The learned Forum came to the conclusion that since such a contention was not taken in the complaint proceeding, the opponents were not entitled to raise it in the Darkhast proceeding. The learned Forum, therefore, issued direction as aforesaid.

It has first been submitted on behalf of the complainant that this appeal is not maintainable at law as final order under Section 27 of the Consumer Protection Act, 1986 (Act for short) has not been passed and the appeal that is provided under Section 27 of the Act is against the final order passed under Section 27A thereof. In our considered opinion, there is great deal of substance in this submission. However, we propose to decide the matter with a view to avoid multiplicity of proceedings treating his appeal as revision application as the question of lack of inherent jurisdiction was required to be decided by the learned Forum as also by this Commission in this proceeding.

IT is settled law that decree or order which is nullity in the eye of law cannot be followed. Such a decree can be challenged at any stage. Reference in this connection has been made on behalf of the original opponents-now appellants to number of decisions (see Harishankar v. Pratapray, 1988 (2) GLR P. 1182 (SC); Jaipur Development Authority v. Radhey Shyam and Others, (1994) 4 SCC P. 370; and Hira Lal Patni v. Kali Nath, AIR 1962 SC 199. The only question is whether Executing Court can go into the factual aspect of the matter for the purpose of deciding whether it had jurisdiction to hear the original complaint or not. IT may be noted here that if the decree can be shown to be without inherent jurisdiction on the face of it, Executing Court can very much deal with the question and decide it. In the present case, the dispute that was raised by the original opponent before the learned Forum in Darkhast (execution proceeding) was whether the complainant could be said to be a ''consumer'' in the eye of law. The definitions of the word ''consumer'' as contained in Section 2(1)(d) of the Act as also the word ''service'' as contained in Section 2(1)(o) of the Act came to be read before this Commission. What was sought to be contended before this Commission was that the transaction between the complainant and opponent was one of purchase and sale of immovable property and there was no question of rendering any service. We have gone through the averments made in the complaint for the purpose of appreciating this submission. The complainant has in terms stated that the opponents carried on occupation as builders and were carrying on the activity of construction of houses. IT is not the case of the opponents that they were merely sellers of immovable property. IT was a question of fact before the learned Forum that the opponents were carrying on construction activity and then allotting and disposing of the property so that it could have been open to the consumer to make grievance also with regard to quality of construction which relates to service to be rendered by the builder. Such a factual aspect appearing on the face of the complaint was not controverted by the opponents before the learned Forum in the original proceeding. The complainant was thus a ''consumer'' as per its definition in Section 2(1)(d) of the Act and opponents were providers of ''service'' as per Section 2(1)(o) of the Act (see Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 S.C. 787. If that is so, they cannot be permitted to raise such a question of fact in the execution proceeding. IT is settled law that the question of decree being nullity can be raised at any stage of proceeding but at the same time it must be shown to be nullity on its face. The executing Court cannot go behind the decree. IT is here that the learned Forum is justified in coming to the conclusion that the opponents did not raise the question before it in the original proceeding. In our considered opinion, the opponents cannot be permitted to raise that question of fact for the first time in the execution proceeding. We might note here that if some individual not carrying on the activity of construction as a builder is selling his property to some other individual it might be argued that such a transaction would be a transaction of purchase and sale of immovable property simplicitor. In that event the purchaser or seller, as the case may be, cannot be said to be consumer vis-a-vis the other party. In that event there is no question of providing service to the respective party. If that is so, there might be lack of inherent jurisdiction in the learned Forum to entertain such a complaint. Immovable property cannot be said to be goods and the Act deals with purchase and sale of goods. Once again transaction of mere purchase and sale of immovable property cannot be said to be a transaction of providing any service. Hence, in such a case, the Forum might lack inherent jurisdiction to deal with and decide the matter. This is not such a case as stated above. The order passed by the learned Forum in the original proceeding became final. Bearing in mind all these facts and circumstances of the case, it is not possible to accept the submissions made on behalf of the original opponentsnow applicants that the decree in question is nullity in the eye of law. We have gone through the decisions which have been referred to by the parties. However, in view of what is stated above, we have no other alternative except to hold that the Forum did not lack inherent jurisdiction in deciding the complaint. In view of what is stated above, we pass following order. ORDER This appeal [Civil Revision Application] is dismissed with no order as to costs. Caveat No. 91 of 2003 shall also stand disposed of. The Darkhast will proceed further after passage of six weeks from today. Appeal dismissed.