Order No. 3

Today is fixed for hearing revisional application on merit. The revisionist Anil Arya and the OP Kanchenjunga Construction Private Limited are being represented through their Ld. Advocates. Revisional application is heard in full. The fact of the case in brief is that one Anil Arya that is revisionist filed a consumer case no. 107/S/2014 before the Ld. DCDRF, Siliguri where the OP Kanchenjunga Construction Private Limited has been contesting the case by filing WV and thereafter at the time of agreement, the revisionist files a prayer before the Ld. Forum for appointment of survey Commissioner to inspect the subject matter in dispute. Ld. Forum on 3/11/2017 has rejected the said application after hearing the both sides. Being aggrieved with this order, this revision follows on the ground that as per terms and conditions of agreement of sale, the builder/developer did not provide the car parking space to the complainant/revisionist and the said builder has already converted specific car parking space by making a construction of some rooms meant for servants so the consumer complainant filed the consumer case and in support of his contention, he has submitted a prayer for appointment of a survey Commissioner to inspect the disputed site which was rejected by the Ld. Forum. The Op that is builder Kanchenjunga Construction Private Limited has contested the case before the Ld. Forum and filed The WV mentioning that the allegation of converting car parking space allotted in sanctioned plan of the building in to two commercial shops and small servant rooms are utterly false and fabricated. The complainant then filed the application before Ld. Forum  with a prayer to appoint an expert engineer as survey commissioner for conducting an inquiry on the points and submit a report along with a videography of ground floor of the building by an expert videographer. The said prayer of the complainant was turn down before the Ld. Forum and for that reason, this complainant prefers this revision on the grounds that for the purpose of elucidating actual matter in dispute and proper adjudication,  appointment of survey Commissioner is very much required and Ld. Forum has failed to appreciate the said facts and such order of Ld. Forum should be set aside and an order should be passed for appointment of a survey commissioner to inspect the locality and to videography the same and to place the matter before the Ld. Forum for proper adjudication. The revisional application is contested by the OP by filing brief notes of arguments and mentioned that previously the case was heard ex-parte and order was passed in favour of the OP by the Ld. Forum. Then the revisionist preferred an appeal before Hon’ble State Commission, Calcutta where the appeal was disposed of in favour of the revisionist and the ex-parte order was set aside and the Ld. Forum was directed to conclude the same consumer proceedings  in presence of both sides within a short span of time. Thereafter the case was remanded back to the Ld. Forum where both sides placed there evidences and at the advance stage of final disposal, the petition for appointment, survey commissioner was preferred only with an intention to delay the process and for that reason, this revisional application should be dismissed.

Decision with reason,

Having heard the valuable arguments and after going through the pleadings of both sides, it is clear and established fact that the contention of this case relates to dispute whether any specific car parking space was allotted in favour of the complainant by virtue of agreement or not and whether such car parking space has become converted at the instance of the builder (OP) into small commercial rooms for servants. This matter to be adjudicated sensitively and for that reason, the Commission feels it necessity to appoint a Commissioner to investigate the spot and inspect the matter in dispute and video graph the spot in dispute and thereafter should submit the report along with videography in order to assist the Ld. Forum to come in a conclusion for proper adjudication of the dispute. So in our view, the revisional application should be allowed. On the other hand, the revisionist had the opportunity to submit such prayer of survey Commissioner before the Ld. Forum at an earliest opportunity. But he has persued this application in a belated stage causing harassment to the Opposite party and for that reason, sufficient cost should be imposed upon the revisionist to compensate the sufferance already endured by the Opposite party.

Hence, it is,

Ordered,

That the instant revisional application filed by the Revisionist Anil Arya is hereby allowed on contest subject to payment of cost of rupees 2000 to be paid by the revisionist to the OP before the Ld. Forum on next date. The order no. 17 of Ld. DCDRF, Siliguri dated 3/11/2017 in reference to CC no. 107/S/2014 is hereby set aside. Ld. Forum is requested to pass an order after hearing both sides for appointment a Ld. Advocate as pleader Commissioner or any survey Commissioner having degree of civil engineering  for conducting an inquiry on the points mentioned in the petition of the complainant dated 1/9/2017 along with videography of the ground floor of the building and to obtain the report within a month and thereafter adjudicate the dispute as per provision of law. Both sides are asked to appear before the ld. DCDRF, Siliguri on 21/5/2019 for hearing before the ld. Forum on that day. The cost imposed upon the revisionist will be paid by him to the OP on 21/5/2019.Order of stay if any deems to be vacated.

Let the order be communicated to the Ld. DCDRF, Siliguri by E-mail and also to be supplied to parties free of cost.