TAJJUDDIN vs LUXMI KAPOOR

THIS is an appeal against the judgment and order dated 10.8.1993 whereby the complaint of the opposite party was allowed.

THE brief facts of the case are that Smt. Luxmi Kapoor had given a THEkha to the appellant for the construction of the house. THE appellant constructed the house but with certain defects. THE roof was leaking. It was not properly laid down. It has again to be reconstructed. It was alleged that the complainant will have to spend a sum of Rs. 6,072/- for the re-construction of the roof. It was further alleged that the floor was not properly constructed, white cement was not used and for its re-construction a sum of Rs. 11,504/- were to be spent. It was alleged that for bringing the house up to standard a sum of Rs. 80,976/- has to be spent by the complainant. The opposite party filed objections and alleged that the complainant is not a consumer. Her materials were properly used and the house has been constructed and there is no deficiency in the service of the contractor.

The complainant has produced the report of an expert Minocha and Associates who has reported about the defects in the construction of the house. After taking the evidence of the parties, the learned Forum held that the claimant was entitled to a compensation of Rs. 18,000/-. According to the opposite party a sum of Rs. 8,342/- was due against the complainant. The learned Forum, therefore, ordered that the contractor should pay a sum of Rs. 18,000/- by 15.9.1993 after deducting his amount of Rs. 8,342/-. In the case of non-payment the contractor was directed to pay interest @ 15%.

BEING aggrieved by this order the present appeal has been filed. We have heard the learned Counsels for the parties and gone through the records. The Thekha is admitted. The construction is admitted. In the grounds of appeal the appellant has alleged in Para 4 that according to the terms and conditions of the agreement dated 26.9.1992, the appellant has to complete the job of construction at labour rates and building material was to be supplied by the complainant. It is alleged that the appellant has submitted his full and final bill of Rs. 55,488/-, out of which Rs. 38,000/- only was paid by the complainant. It is said that the appellant has sent the legal notice and the complainant filed the present complaint to defeat the claim of the appellant.

WE have heard the learned Counsels for the parties and gone through the records. If the appellant has given a legal notice and if he has got any claim he should have filed his suit but we have to proceed on the question whether there is any deficiency in the service of the complainant or not. Before the learned Forum a plea was also raised the map itself has not been sanctioned by the prescribed authority and the construction, therefore, was illegal and the complaint could not have been filed. The plea that the complainant is not a consumer was not taken here. However, under the provisions of the Act, housing construction is also within the definition of service and the appellant has taken a Thekha for housing construction. He was to get handsome amount for rendering this service and if there is any deficiency in his service definitely this is a consumer dispute. The question is whether the construction of the house was illegal. In the complaint in Para 2 it is specifically mentioned that before the agreement the opposite party had given an undertaking that he will get the map sanctioned from the prescribed authority. In reply to this para in the written statement in Para 12 the drafting is such that it shows the admission that the appellant has promised to help the complainant in getting the sanction of the map but it appears that this was only a typing mistake. At any rate there is no finding of the learned Forum whether this undertaking was given by the appellant or not but the plea was raised here. The learned Counsel for the respondent argued that this is a new plea. It cannot be taken in a revision. But we find such a plea has been taken in the written statement and the learned Forum did not decide. The appellant could not have agitated it otherwise except to raise the plea here. The ruling has been referred reported in I (2003) CPJ 184 (NC)=2003 (1) CPR 317 (NC), Mrs. Malvinder Kaur v. Pallav Mukherjee, where services of contractor were hired for construction of building. The complainant alleged deficiency in service and faulty construction. There was no sanctioned plan of building for which construction was undertaken. It was held that the agreement to construct unauthorised building would be unlawful and no consumer dispute could arise.

NOBODY in this case said that the construction was unauthorised except the appellant. It is he who has taken the construction of the building. He has received handsome amount from the complainant. If there is any deficiency in his service, he shall be liable. In the said ruling the map was never sanctioned but in the present case the respondent/complainant has filed the map which has now been sanctioned. If it was not sanctioned on the date of the construction, it is immaterial because sanctioning of the map dates back to the original date on which it was moved for sanctioning. If the map has been sanctioned subsequently the construction becomes regularised and no plea can be raised that the house was constructed which was not sanctioned. Therefore, this plea is now immaterial.

NOTHING was argued by the appellant on the merits of the case. The learned Forum has discussed the report of the expert in detail and has agreed with that report. The appellant was present along with Counsel when the expert filed its report but neither the appellant nor his Counsel tried to cross-examine the witness. There is no reason to disbelieve the report of the expert who has reported that the roof, floor and plaster was not proper and was definitely defective. There is nothing for which we may differ from the findings recorded by the learned Forum. The appeal has got no force and is to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy. Appeal dismissed.