DIST. CONSUMER DISPUTES REDRESAL COMMISSION
NORTH 24 Pgs., BARASAT.
C.C. No./256/2023
P R E S E N T :- Sri Daman Prosad Biswas………President.
:- Sri. Abhijit Basu………………. Member.
Order No.07
Dated. 04.09.2024
Today is fixed for hearing the M.A. case no. 25/2024.
Ld. Advocate for the Complainant is present.
Ld. Advocate for the O.Ps is present.
Complainant filed questionnaire. Copy served.
To 03/10/2024 for filing reply by the O.P.
Today is also fixed for hearing the M.A. case no. 25/2024.
Ld. Advocate for the Complainant is present.
Ld. Advocate for the O.Ps is present.
M.A. case no. 25/2024 is taken up for hearing. Heard both sides.
Perused the petition.
We find that Complainant by filing this petition prayed for inspection of the disputed property by Advocate Commissioner.
He also filed another petition on 05/07/2024 and stated that in previous petition dated 15/01/2024 he could not mention the specific provision under which the relief was claimed. He further stated that in the decision reported in 2024 (1) by ICC Allahabad 108 it has been held that non mentioning the Section or wrong mentioning of provision of law not to be treated as obstacle in proceeding. He prayed for holding of local inspection of the suit property by Advocate Commissioner Under order 39 rule 7.
We have carefully gone through the decision reported in 2024 (1) ICC 108 (All) we find that Hon’ble Allahabad High Court held:-
“This is settled law that non-mentioning or wrong mentioning of provisions of law should not be treated as obstacle in proceeding with a case. In my view, an ordinary litigant cannot be expected of having too minute knowledge of provisions of law and that the court shall be failing in its duty if the case is thrown in the waste paper basket on a technical point or on the basis of mentioning of a wrong provision of law. In such matter, a Judge ought to play its expected role. In this view of the matter, I find it fit to treat this petition as one moved under Article 227 of the Constitution of India.”
Contd. To page no. 2 . . . ./
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C.C. No./256/2023
Perused the petition dated 15/01/2024 filed by the Complainant by which Complainant prayed for local inspection over the suit property. Also perused the petition dated 05/07/2024 filed by the Complainant relating to self-same subject. He also mentioned that petition dated 15/01/2024 be treated as a petition under order 39 rule 7 of C.P.C.
We find that O.P No. 1-3 filed W/O on 05/07/2024 against the aforesaid petition dated 15/01/2024 filed by the Complainant.
During hearing Ld. Advocate for the Complainant argued before this Commission that as per Section 26(1) of Consumer Protection (Consumer Commission Procedure) Regulation 2020, this Commission has the power to entertain the aforesaid petition which has filed under order 39 rule 7 of C.P.C.
We have carefully gone through the said provision which is mentioned here:-
“26. Miscellaneous.-(1) In all proceedings before the Consumer Commission, endeavour shall be made by the parties and their agent to avoid the use of provisions of Code of Civil Procedure, 1908(5 of 1908):
Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made thereunder.”
In this context we have carefully gone through Section 38 (9) of C.P. Act, 2019 which reads as under:-
“(9) For the purposes of this section, the District Commission shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-
(a) the summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;
(b) requiring the discovery and production of any document or other material object as evidence;
(c) receiving of evidence on affidavits;
(d) the requisitioning of the report of the concerned analysis
or test from the appropriate laboratory or from any other relevant source;
(e) issuing of commissions for the examination of any
witness, or document; and (1) any other matter which may be prescribed by the Central Government.”
Contd. To page no. 3 . . . ./
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C.C. No./256/2023
We find that there is no note in the aforesaid provision that order 39 rule 7 is applicable before the District Consumer Disputes Redressal Commission.
In this context, we have carefully gone through the decision of Hon’ble S.C.D.R.C passed in Revision Petition No. RP/140/2023 (Uttam Kr. Samanta Vs. Basant Sahani & Ors.) dated 19/12/2023.
We find that Hon’ble S.C.D.R.C held:-
“10. In view of a specific legislative intent discernible from the aforesaid provision we are of the view that powers as exercisable by the Civil Court under order 39, Rule 7 of the Court are not available to the Consumer Fora under the Act. It is, however, open for the revisionist / petitioner to establish the allegations by providing such evidence, as he is advised. In fact, as mentioned above under sub section 9 of section 38 of the Act evidence on affidavit can be received by the Consumer Fora under the Act which may be affidavit of experts including Advocate Commissioner and / or Civil Engineer.”
Accordingly we find that District Commission has no power to allow local inspection by Advocate Commissioner under the provision of order 39 rule 7.
Having regard to the facts and circumstances of this case and keeping in mind the aforesaid decision of Hon’ble S.C.D.R.C, we think that prayer for local inspection before the District Commission is not entertainable.
Hence, the petition filed by the Complainant dated 15/01/2024 and 05/07/2024 praying for local inspection of disputed property by Advocate Commissioner which registered as M.A. 25/2024 is considered and rejected.
M.A. case no. 25/2024 is thus disposed of.
To 03/10/2024 for filing reply by the O.P as per questionnaire filed by Complainant on 04/09/2024.
Member President
