Challenge in this first appeal is to the order/s dated 26/11/14 and order dated 16/12/14 of the Lr. North Goa District Forum, in C.C. No. 111/2009.
2. Some bare facts are required to be stated to dispose off this appeal, and for that, the parties to this appeal are being referred to in the names as they appear in the cause title of the said complaint.
3. The complainants under two agreements dated 2/7/07 styled as agreements for construction cum sale booked two villas, with a view to combine the same, for a sum of Rs. 15 lacs each. The villas were to be delivered to the complainants on or before 21/12/07. The said agreements came in trouble for some time, but eventually the OP, a firm of builders, handed over the possession of the said villas to the complainants on or about 18/02/09.
4. The complainants claim that at the time of handing over the said villas they tried to bring to the notice of the OP, about the bad quality of fittings, shoddy finishing, etc., etc. followed by letter dated 25/2/09 placing on record that the complainants were pressurized to pay a sum of Rs. 1,22,159/-. The complainants then engaged the services of Engineer Shri. M.S. Chauhan who submitted a report dated 7/2/09, and, the complainants thereafter filed the said complaint on or about 7/10/09 for various reliefs, including a direction to the OP to execute sale deeds in respect of the said villas; payment of Rs. 76,127/- towards repairs/rectifications; Rs. 1,54,000/- for delay in handing over possession; Rs. 1 lac for excess payment and Rs. 10 lacs in compensation, etc.
5. The OP filed their written version on or about 4/3/10. The complainants then produced their evidence in support of the complaint in the form of five affidavits including that of complainant No. 1 (CW-1) and the said Engineer Shri. Chauhan
(CW-5). The said affidavits were filed between 29/1/11 and 2/2/11. The OP then filed an application dated 28/2/11 for cross examination of the said five witnesses/deponents. The application was allowed by order dated 28/06/11 and the said order was challenged by the OP before this Commission in RP No. 07/11. The said order was set aside, by order of this Commission dated 12/12/11, as it was not supported by any reasons and was passed contrary to the provisions of Section 14 (2-A) of the C.P. Act, 1986.
6. After remand, the application dated 28/02/11 came to be dismissed, by order dated 4/10/12, and in dismissing the same, the Lr. District Forum, inter alia, observed as follows:
“10. We are of the opinion that considering the summary nature of the proceedings, there cannot be examination in chief, cross-examination, re-examination as contemplated u/s 137 of Indian Evidence Act. The procedure laid down under section 137 referred above is to be strictly followed by the Civil Courts and not by the Consumer Courts who are governed by the special statue i.e. Consumer Protection Act. If we permit the parties to examination in chief, cross-examination and re-examination the very purpose for deciding the cases speedily under the Consumer Protection Act will be defeated and therefore there is no strict applicability of said section 137 of the Indian Evidence Act in the cases pending before the Consumer courts.”
7. The OP preferred a revision petition against the said order dated 4/10/12 being RP No. 14/12 and Shri. A.R. Kantak after relying on Dr. J.J. Merchant, 2002 (6) SCC 635 and Smt. Indrani Bhattacharjee (order dated 3/12/04 of the National Commission) withdrew the revision petition which was dismissed as withdrawn.
8. The OP thereafter delivered interrogatories to the complainant’s witnesses and as far as CW-1 is concerned, as many as 70 interrogatories were delivered to him which he answered on affidavit on or about 11/03/13. As far as CW-5 is concerned 42 interrogatories were delivered to him and the same were answered by him on or about 28/7/14.
9. The OP filed two applications on 29/04/13 one to differ of putting interrogatories to CW-5, only after the interrogatories were answered by CW-2, CW-3 and CW-4 and the other for oral cross examination of CW-1. Both these applications were dismissed. This was after the Complainant/CW-1 answered the interrogatories on affidavit on or about 11/3/13. The second application was dismissed with the following observations:
“2. If complainant chooses not to reply /evade answers, he may choose to do so even during an oral cross examination”.
“3. If relevant questions are not answered it is up to the Forum to take adverse inferences against him, which we may choose to do.”
10. Thereafter, the OP filed two applications, both dated 10/09/14 for oral cross examination of CW-1 and CW-5, respectively. The same were objected to by separate replies dated 29/09/14 filed on behalf of the complainant, and, the Lr. Forum by separate orders dated 26/11/14 have rejected the said applications, inter alia, observing that the OP had not disclosed cogent ground for seeking oral cross examination of the complainant/CW-1 and complainant’s witness CW-5 as no cross examination can be granted specially when the proceedings are under C.P. Act and as the said witnesses have already answered the questionnaire furnished by the OP. The
Lr. District Forum has further observed that the OP has adopted dilatory tactics by filing the said applications which were not relevant in deciding the present complaint.
11. We have heard Shri. A.R. Kantak, the lr. advocate of the OP and Shri. Kamat, the lr. advocate of the complainants and perused the record.
12. Shri. Kantak has taken us through the answers delivered by the complainant/CW-1 and engineer Shri. Chauhan/CW-5 and has submitted that the complainant/CW-5 is required to be cross examined with reference to the answers given by him to question Nos. 24,26,37 and 39. Lr. advocate has further submitted that Engineer Chauhan/CW-5 has given vague answers, such as answers to question Nos. 2,7,36 and 38 and to some questions he has given a wrong reply which requires further questions to be put to him and therefore the said CW-5 is required to be orally cross examined.
13. At the outset, we would like to make it clear that there was no finding given by this Commission by order dated 27/11/12. The revision petition filed by the OP being RP No. 14/12 was dismissed as withdrawn.
14. As regards the application dated 10/09/14 filed by the OP for the cross examination of the complainant/CW-1 is concerned, it must be observed that the same was hit by res judicata as application dated 29/4/13 was dismissed by the Lr. District Forum by order dated 4/4/14 by observing, and in our view rightly, that if relevant questions were not answered it was up to the Forum to draw adverse inferences against him which the Forum would choose to do. The said order dated 4/4/14 has attained finality as it is not challenged by the OP and, therefore, the issue could not be
reopened by filing another application dated 10/09/14. It may be noted here that general principle of res judicata is followed in all jurisdictions, including consumer jurisdiction. It is based on two other principles: One, no man should be vexed twice over the same cause of action; Two, it is in the interest of the State that there should be end to litigation. The first principle looks to the interest of the litigant who should be protected from a vexatious multiplicity of applications/suits because otherwise, a man possessed of wealth and capacity to fight can harass his opponent by constant dread of litigation.
15. The Apex Court in Dr. J.J. Merchant & ors., 2002 (6) SCC 635 held that:
“if cross-examination is sought for by other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits.”
16. In other words, the Forum should first find out whether cross examination on interrogatories is required or not in the facts of the given case and then only allow the OP to deliver the interrogatories to the other side.
17. Justice D.P. Wadva, writing for a Bench of 3 learned members of the National Commission in Con Décor (order dated 6/2/02 in RP No. 5118/2002) has held that:
“When it is merely a question as to veracity of the statement of the witness, cross-examination cannot be permitted. In that case to contradict a party can certainly file his own affidavit or of any other witness. If cross-examination of a person is to be permitted in every case under the Consumer Protection Act, the whole object of this Act would be lost and there would hardly be any difference in proceedings before a Forum under the Act and a Civil Court. Many disputes involving high stakes and huge values are decided in writ jurisdiction by the High Courts and Supreme Court merely on the basis of affidavits. It, therefore does not appeal to reason that when Consumer Protection Act permits evidence to be led by means of affidavits right of cross-examination must be resorted to in every case. A Forum under Consumer Protection Act must exercise extreme caution in permitting cross-examination.”
18. In our view, there is no question of oral cross examination of either the complainant/CW-1 or engineer Shri. Chauhan/CW-5. The OP can always give evidence/file an affidavit and fill in, in case there is any vagueness, in the answers given either by CW-1 or by CW-5 or give further details or clarify the answers given in case such clarification is required. We endorse the finding given in para 3 of the order dated 4/4/14 by the Lr. District Forum to which we have already made reference more than once and proceed to dismiss the
FA in relation to both the orders dated 26/11/14 (copies of which we find on record) but reference made to only one of them. We are also of the view that the order dated 16/12/14 in imposing costs of Rs. 2,000/- cannot be faulted as nothing prevented the OP to file their affidavit-in-evidence, more so when the complainant No. 1 and other witnesses had filed their affidavits-in-evidence much earlier and so also affidavits answering the interrogatories.
19. The consumer complaint, as already stated, was filed on 7/10/09, a complaint which was required to be disposed off within three months or so, but 5 years have passed since then and the disposal of the complaint does not appear to be anywhere in sight. The C.P. Act provides to the consumers an alternate and efficacious remedy to settle their disputes by providing a procedure which is summary, less expensive and more speedy as opposed to the procedure prescribed by the Code (of Civil Procedure) which is known to be expensive, more elaborate and lengthy and yet we find that the complainant’s complaint is still pending with no end in sight.
20. In the circumstances, therefore, we proceed to dismiss the appeal with costs of Rs. 5000/- to be paid to the complainants by the OP. The parties shall appear before the Lr. District Forum on 6th April 2015 on which day the OP shall produce their evidence. The Lr. District Forum is hereby directed to dispose off the complaint in accordance with law as expeditiously as possible.
