TAHER MOHAMMED PIR MOHAMMED vs JAMIL KHAN HAFIZ NAZIR KHAN PLOTWALE

THIS matter was moved before us on behalf of the appellant for admission hearing on 16th July, 2003, when we issued notice to the respondent before admission, making it returnable today at our Nagpur Camp and granted Hamdast to the appellant''s Advocate to serve the process. The learned Advocate Mr. J.L. Kurani states that accordingly the service has been effected upon the respondent through post and he has also received the postal acknowledgement. It is, thus, noticed that despite service of process the respondent has not responded. We notice that even before the D.F., Nagpur the respondent did not file written statement.

WE are proceeding to dispose of this appeal at the stage of admission itself on hearing the learned Advocate for the appellant and on perusal of the material available in the appeal paper book. Appellant is the original complainant, who filed the complaint against the respondent-O.P., claiming the possession of the plot of land of the description mentioned in the complaint and for which he had paid full consideration of Rs. 30,000/-.

Despite full payment of consideration, O.P. did not discharge his contractual obligations of handing over the possession of the plot as also execution of the sale-deed, etc., that the complaint was filed.

AS stated despite service of process by Forum, O.P. did not appear and file the written statement as also contest this dispute. Consequently, the case and the claim of the complainant which was supported by documents, remained unchallenged and un-controverted.

SINCE there was no challenge from the O.P. the D.F., Nagpur allowed the claim of the complainant and has passed the award in favour of the complainant. The reason of filing this appeal by the complainant despite succeeding before the D.F., Nagpur, is that D.F., Nagpur in its final order provided two options to the O.P. No. 1 being that he should hand over the possession and execution of the sale-deed and No. 2, being alternatively, refund of the amount of consideration paid by the complainant to the O.P. with interest. The grievance of the complainant in the appeal is that he had never sought the refund of the amount and that in his complaint he has prayed for possession. That being so, the second option provided by the D.F. in its impugned judgment for refund of amount of consideration has been foisted upon him resulting in causing manifest injustice.

WE are of the view that the grievance of the complainant-appellant is reasonable one. Although the Forum exercising judicial power and statutory authority has discretion to mould its final order, it should ensure that the same does not travel beyond the scope of reliefs claimed by the parties.

THAT being so we allow the appeal and set aside the impugned order as far as second option of the refund of amount is concerned. ORDER (i) Appeal is partially allowed to the extent as under: (ii) The order, as far as first option as provided therein, ordering O.P. to hand over the possession of the plot of land and execute the sale-deed, stands confirmed. (iii) The second option provided as an alternative for refund of the amount of consideration stands set aside. (iv) Rests remain unchanged. (v) As far as this appeal is concerned no orders as to cost. (vi) Copies to be furnished to the parties. At this stage, Miss Varsha Y. Wasu; Advocate for the respondent appeared and submitted her Vakalatnama on behalf of the respondent.

Appeal partly allowed.