Rajasthan Housing Board vs Gulab Chand

THE opposite party before the District Forum has challenged the order dated 29.4.91 passed by the District Forum, Kota in Complaint Case No. 622/89. THE District Forum ordered that the opposite party should not recover more than Rs. 94,600/- from the complainant-respondent in respect of the house No. M.RA. 58, Mahavir Nagar, Kota and that installments may be refixed. A further direction was given that the opposite party should issue an amended allotment letter within one month after amending the cost of the house. In view of the conclusion to which we have arrived at after hearing the learned Counsel for the appellant, it is not necessary to give a detailed resume of facts leading to this appeal. Suffice it to mention that the complainant filed a complaint under Sec. 12 of the Consumer Protection Act ("the Act") before the District Forum praying for a direction against the opposite party not to recover the increased cost from the complainant and certain other reliefs were also sought. THE original complaint is dated 5.9.1989. It may be stated that before the District Forum, Kota some preliminary objections were raised regarding the maintainability of the complaint. Previously one of the objections was that the cost of the house is more than Rs. 1 lakh and the District Forum has no pecuniary jurisdiction to hear the complaint. THE District Forum by its order dated 11.2.91 held that it has no jurisdiction to hear the complaint and it should be returned to the complainant for representation before a competent Redressal Forum/Court. On an endorsement being made on the complaint about its return, the complaint was represented before the State Commission.

ON behalf of the complainant an application for withdrawing the prayer for compensation was submitted so as to bring the complaint within the pecuniary jurisdiction of the District Forum. That application was allowed and it was ordered that by the State Commission on 15.3.91 that the complaint presented before the State Commission should be returned to the complainant in accordance with the directions contained in the order and the District Forum was directed to dispose of the complaint in accordance with law keeping in view the provisions of the Act and the Rules made there under. ON 18.4.91 the complaint was adjourned for 22.4.91. ON 22.4.91 Counsel for the parties were present. The District Forum heard the arguments and posted the complaint for orders on 29.4.91. ON 29.4.91 the impugned order was passed. We heard Mr. M.L. Vyas, Advocate for the appellant and Mr. S.C. Mittal, Advocate for the respondent and have considered the order under appeal with requisite care and also the record in the light of the submissions made by the learned Counsel for the parties. It is futile for the learned Counsel for the appellant to contend that the District Forum, Kota lacked pecuniary jurisdiction inasmuch as the cost of the house allotted to the complainant respondent was more than Rs. 1 lakh. His attention was drawn to the order passed on 15.3.91 by the State Commission in Complaint Case No. 33/91 by which the complaint was ordered to be returned to the complainant for re-presentation before the District Forum, Kota and it was directed to dispose of the complaint in accordance with the law. Thereafter learned Counsel for the appellant did not pursue the matter further regarding the point relating to lack of pecuniary jurisdiction of the District Forum, Kota. Learned Counsel for the appellant next vehemently argued that after the re-presentation of the complaint in pursuance of the order of the State Commission dated 15.3.91, the District Forum failed to try the complaint in accordance with the procedure laid down in Sec. 13(2) "the Act" and this has resulted in miscarriage of justice and so the order under appeal stands vitiated. It appears that on 18.4.91 it was ordered that the complaint may be fixed on 22.4.91. On 22.4.91 the District Forum heard the arguments and passed the impugned order on 29.4.91. Procedure on receipt of complaint has been provided under Sec. 13 of the Act. Amongst others in regard to the complaint relating to service procedure has been laid down in Sec. 13(2). The material part of which is as under: "The District Forum shall, if the complaint received by it under Section 12 relates to goods in respect of which the procedure specified in sub section (1) cannot be followed, or if the complaint relates to any services : - (a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum; (b) Where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute: - (i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegation contained in the complaint, or (ii) on the basis of evidence brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum".

After the representation of the complaint and relinquishing the claim for compensation so as to bring it within the pecuniary jurisdiction of the District Forum, no opportunity whatsoever was given to the opposite party to file the version of the case. It is clear that one date 22.4.91 was fixed and on that day arguments were heard and the first date before that was 18.4.91. The impugned order was passed on 29.4.91. The opposite party had no occasion to contest or to oppose the complaint after the passing of the order dated 15.3.91 by the State Commission and the re-presentation of the complaint before the District Forum. What to speak of 30 days, even reasonable time was not afforded to the opposite party for filing the version of the case. It may be that both the learned Counsel argued the complaint on 22.4.91 without raising any demur or protest. After relinquishing the claim for compensation, it was necessary to afford an opportunity to the opposite party for filing the version of the case and to lead evidence regarding the respective versions. From the proceedings dated 18.4.91 and 22.4.91 we are satisfied that the District Forum has mismanaged the trial of the complaint and that has resulted in failure of justice. The findings recorded by the District Forum, therefore, stand vitiated and the case will have to be sent back to the District Forum for trial on merits in accordance with law. The District Forum, Kota shall fix a date for appearance of the parties and also a date for filing the version of the case by the opposite party if it so likes within the statutory time provided under the Act and thereafter reasonable opportunities will be afforded to both the parties for evidence. It will be for the complainant to file the affidavits first and thereafter the opposite party may file affidavits in rebuttal within the time allowed. After the parties have filed the affidavits an opportunity of hearing will be granted to them and thereafter the complaint will be disposed of on merits, keeping in view the provisions contained in Sec. 14(2) of the Act as they stand today.

WE are constrained to allow this appeal and set aside the order dated 29.4.91 passed by the District Forum, Kota in Complaint Case No. 231/91 and remand the complaint with a direction to the District Forum to take the complaint on its file and decide it afresh keeping in view the observations made hereinabove. The parties are left to bear their own costs. Appeal allowed.