Madhya Pradesh

StateCommission

A/16/1131

SHRI KRISHNA BUILDERS & DEV. - Complainant(s)

Versus

ASHISH DHANUKA - Opp.Party(s)

SH.DEEPAK PANJWANI

26 May 2017

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

                              

                            FIRST APPEAL NO.1131 OF 2016

(Arising out of order dated 08.08.2016 passed in C.C.No.274/2015 by the District Forum, Jabalpur)  

 

SHRI KRISHNA BUILDERS & DEVELOPERS.                           …             APPELLANT.

 

Versus

 

ASHISH DHANUKA.                                                                     …         RESPONDENT.

 

BEFORE:

 

                  HON’BLE SHRI JUSTICE RAKESH SAKSENA   :  PRESIDENT

                  HON’BLE SHRI SUBHASH JAIN                          :      MEMBER             

 

                                      O R D E R

26.05.2017

 

          Shri Sunil Nema, learned counsel for the appellant.

            Ms. Shabina Ali, learned counsel for respondent.

             

As per Shri Justice Rakesh Saksena : 

                       The appellant/opposite party has filed this appeal against the order dated 08.08.2016 passed in C.C.No.274/2015 by the District Consumer Disputes Redressal Forum, Jabalpur.

2.                     The respondent/complainant filed a complaint before the District Forum for completing construction of the flat and executing the sale-deed and also for compensation for not delivering the possession of the flat within time as per terms of the agreement.

3.                     The facts relevant for disposal of this appeal are that after service of notice of complaint the appellant/opposite party failed to appear before the District Forum on 21.06.2016, therefore an order to proceed ex-parte was passed against him.  Challenging the said order the opposite party preferred a revision before this Commission which was registered as Revision Petition No. 96/2016, however, since there had been no stay order, the final order was passed by the District Forum on 08.08.2016. The revision, therefore, became infructuous.   In these circumstances, the appellant has filed this appeal challenging the said order on the ground that the appellant could get no opportunity to put his case/defence before the District Forum.  Counsel for appellant submits that no full amount of consideration had been paid by the complainant and still some amount is due on the complainant. If the impugned order is allowed to stand, appellant shall suffer irreparable loss.

4.                     The question before us is whether the appellant should be granted fresh opportunity to defend his case before the District Forum for which he was precluded by passing the ex-parte order on 21.06.2016.  It is borne out from the record that the appellant had filed revision challenging the said order but during its pendency final order was passed by the District Forum.  Legally, the impugned order passed by the District Forum suffered with no jurisdictional error but it is always

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better for advancement of justice that all the parties to litigation are afforded opportunity to put up their case before the trial court and the dispute is decided on merits.

5.                     Learned counsel for the appellant submits that on 21.06.2016 the appellant had gone to Mumbai in connection with treatment of his nephew who was ailing with chronic kidney disease, therefore, he could not appear before the District Forum.  It was beyond his control to appear before the District Forum.  Being a bonafide person he also approached to the State Commission for setting aside the ex-parte order, but his revision was rendered infructuous on the final order being passed by the Forum.

6.                     Learned counsel for respondent submits that the conduct of the appellant has caused delay in disposal of the complaint.  She submits that if the impugned order is set-aside and the appellant is afforded fresh opportunity to defend his case, it will cause further delay in adjudication of the case.

7.                     We have considered the submissions made by learned counsel for parties and perused the record. In the facts and circumstances of the case, we deem it appropriate to set-aside the impugned order without going into merits of the case solely with a view to afford an opportunity to appellant to defend his case adequately before the District Forum.  Accordingly, the impugned order passed by the District Forum on 08.08.2016 is set-aside and the case is remanded back to the District Forum for deciding it afresh in accordance with law.  In the circumstances of the case the complainant however needs to be compensated for the delay being caused in afresh disposal of case.  This order shall therefore be subject to payment of cost of Rs.10,000/- to complainant within one month.  It is expected from the District Forum that it will make all endeavors for disposal of the case within statutory limit of 90 days, as far as possible, from the date of appearance of parties.   Both the parties, through their respective counsel, are directed to appear before the District Forum on 15.06.2017.

8.                     Appeal allowed.