P.VANAJA KUMARI vs A.S.REDDY BASHA

WE heard the Counsel for the appellant, Mr. V. Madhusudhan Rao respondent, who was the complainant before the District Forum, was served and he sent a written representation.

WE called for the records of the District Forum because one of the contentions raised by the appellant in this appeal is that the appellant did not receive notice in C.D.C. No. 63/1998 from the District Forum. The record of the District Forum is before us and we find that notices were sent to both the opposite parties and that the notice sent to the second opposite party was returned with the postal endorsement "Refused. So Returned to Sender". From the returned cover it is seen that it was sought to be served on her on 6th, 7th, 11th and 13th April, 1998. In the circumstances we find that the stand taken by the appellant is not correct. As she refused to receive the registered letter containing notice to her, it must be deemed that she received the notice. The complainant approached the Chittoor District Forum stating that he joined in a chit that was being run by the opposite parties and that he paid 17 monthly instalments. The chit itself was for Rs. 25,000/- and the duration of the chit was 20 months and the amount to be paid for each month was Rs. 1,250/- subject to deductions by way of dividends. The case of the complainant before the District Forum was that the chit was being run by the two -opposite parties i.e., P. Chandra (first opposite party) and Smt. P. Vanaja Kumari (second opposite party). The complainant allowed the complaint to be dismissed against the first opposite party and pressed the complaint only against Smt. P. Vanaja Kumari. Relying on the xerox copy (marked as Ex. A1) of the chit pass-book filed by the complainant, the District Forum allowed the complaint by its order dated 24.7.1998 and directed the second opposite party to pay Rs. 18,710/- with interest at 18% per annum from the date of the complaint till realisation and also costs of Rs. 500/-. The second opposite party i.e., Smt. P. Vanaja Kumari, questions the said order in the present appeal as appellant.

We find that Ex. A1 chit passbook filed by the complainant does not establish in any way that the chit was being run by the appellant. It does not bear the name of the appellant or her signature anywhere showing that she or the first opposite party, P. Chandra, were running the chit. The initials therein against payments shown therein are not decipherable and merely looking at the initials it is impossible to connect them to the appellant. The complainant has not even filed an affidavit in evidence. Under the circumstances we have to hold that the order of the District Forum is not supported by any material on record for holding that the chit was being run by the appellant. Perusing the order of the District Forum carefully we find that there is no finding by the District Forum that the chit was run by the appellant and that the amounts mentioned in Ex. A1 were received by her. The relevant portion of the order of the District Forum reads as follows : "Now the point for determination is whether there are any grounds for allowing the complaint ? In support of his contention the complainant relied on Ex. A1 which is the xerox copy of the chit passbook. Ex. Al shows that it is in the name of the complainant. It is further evident that the complainant has paid 16 installments (17 instalments ?) less dividends. As the 2nd respondent remained ex parte there is no one to question the claim of the complainant. The complaint and Ex. A1 proved the contention of the complainant."

We find that this reasoning is fallacious. From the mere fact that the opposite party did not appear after notice or after appearing did not file version /counter, it does not follow that the complainant''s case is proved - no presumption in that regard can be drawn. Even if the opposite party is absent, the complainant will have to establish his/her case set out in the complaint by reliable and convincing evidence. Orders made ex parte also should be supported by reasons and findings therein should be based on acceptable material. In Smt. Sudha Devi v. M.P. Narayanan & Ors., (1988) 3 SCC 366=AIR 1988 SC 1381, the Supreme Court has held that "even in absence of a defence the Court cannot pass an ex parte decree without reliable relevant evidence". We have also to observed that when parties or voluntary consumer associations appear in person before . Tribunals under the Act they have to be told and cautioned that they have to adduce relevant, acceptable and convincing evidence-oral and/ or documentary - to substantiate the case set out in the complaint even though opposite party/ parties choose not to appear or absent themselves.

THE District Forum had no material to establish that the appellant had anything to do with the chit or chit passbook or to conclude that the chit was being run by the appellant. THE complaint cannot be proof of the allegations therein - it is not Bible. In the present case we find that there is not an iota of evidence connecting the chit passbook to the appellant. THEre is no other material whatsoever to fasten the liability in respect of the alleged chit on the appellant. No evidence or any material was placed before the District Forum to establish that the appellant was doing chit business. THE complainant should have placed reliable independent evidence to establish that the appellant-by herself, or with her husband - was doing chit business. Unfortunately Ex. Al filed by the complainant does not contain anything to connect the appellant with it. In the result the order of the District Forum is set aside and the complaint is dismissed. The appeal is accordingly allowed. No costs. Appeal allowed.