SHIVAJI TATYABA SANAP vs JIJABAI SHIVARAM SAGALE

THE appeal is taken on board for hearing. As a matter of fact the appeal filed is not a proper remedy since the same has been filed against the order of the District Forum rejecting the application of the applicants who are O.Ps. in the said complaint for deciding maintainability of the complaint before the District Forum as a preliminary issue.

IT is to be stated that the said application was moved by the original O.Ps. with the contention that the flat in question was constructed by the Co-operative Society of which complainants/respondents herein are the members, District Forum however did not find substance in the said application and in our view rightly. At the outset it needs to be stated that on perusal of the complaint, its cause title and averments in the complaint, the same is by the flat purchasers against the builders. As stated, respondents herein are the original complainants/flat purchasers and appellant is the builder.

If one reads the cause title of the complaint as also averments in body of the complaint, this is a dispute simplicitor between the flat purchaser and the builders in respect of deficiencies in the construction of the flat. That being so, as provided under Sub-section (o) of Section 2 of Consumer Protection Act, 1986, housing construction activities are made part of the service to be amenable to the jurisdiction of Consumer Fora established under Consumer Protection Act, 1986. We do not find any merits in the contentions raised by and on behalf of the appellants herein for deciding preliminary issue of jurisdiction. There is another angle which would also need consideration. The jurisdiction for entertainment of the complaint or any claim of civil nature is principally to be determined on the basis of averments as contained either in the complaint or in the plaint in the Civil Court and the defense expected to be raised by the O.P. is not to be considered in determining the jurisdiction of the Fora. It is evident that the appellants have chosen to raise preliminary objection on the footing that the dispute is against the society. Factually it is incorrect. In the circumstances we do not find any merits in this appeal. However, we wish to clarify that our observations appearing in the judgment herein to be treated as prima facie and District Forum shall order the same independently on the basis of the material before it, totally uninfluenced by our observations appearing in the judgment. We wish to state that as far as matter herein is concerned, it is pending since 1995. This is a second inning as far as present appellant is concerned, before this Commission. Earlier also the matter was brought before us and the same was remanded and this is the second time that matter is brought before us. As the dispute is pending since long, we direct that the District Forum shall ensure disposal of the complaint on merits expeditiously and in any event within 3 months of the receipt of the order herein. With this appeal herein stands dismissed. Appellant shall pay cost of this appeal to the respondents/complainants quantified at Rs. 1,000/-. Appeal dismissed.